Charlotte Tiller Knudsen In her own right v. as Executrix, 2021 NLSC 85

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Knudsen v. Williams , 2021 NLSC 85 Date : June 10, 2021 Docket : 201501G0018 Between: Charlotte Tiller Knudsen In her own right and as Executrix of the Estate of the late Hazel Williams Tiller Plaintiff And: Desmond Williams First Defendant And: Rita Williams Second Defendant Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: May 20 and 26, 2021

Summary:

The Defendants applied for

Summary Trial regarding a property dispute in the Town of Bay Bulls, and sought dismissal of the Plaintiff’s claim for damages and an injunction. The Plaintiff claimed ownership of the parcel of land, or a portion thereof, on which the Defendants have their house. The Defendants also applied to vacate the Notice of Lis Pendens . The Court held the Applicants satisfied the threshold inquiry for

Summary Trial but dismissed the Application. There are genuine issues for trial that could not be resolved on the record, and it would be unjust to decide the issues by way of

Summary Trial. The Court refused to vacate the Notice of Lis Pendens pending trial of the issues. The Court gave directions on future proceedings, including ordering a Settlement Conference. There was no order as to costs. Appearances: Ronald A. Cole, Q.C. Appearing on behalf of the Plaintiff Raymond G. Critch Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd , 2020 NLCA 42 ; In Barron v. Osmond , 2020 NLSC 131 ; Murphy v. Gosse , 2007 NLTD 161 ; Gosse v. Murphy , 2008 NLCA 26 ; Paro Enterprises Ltd. v. Murphy , 2015 NLCA 33 ; Duffitt v. Conception Bay South (Town), 2016 NLTD(G) 89; Infini-T Holdings Ltd. v. Bell Aliant Regional Communications Inc ., 2010 NLTD(

G) STATUTES CONSIDERED: Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 ; RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c.42, Sch. D REASONS FOR JUDGMENT Noel, J. : INTRODUCTION [ 1 ] The Plaintiff, Charlotte Tiller Knudsen in her own right and as Executrix of her late mother’s Estate claims that she has been wrongfully deprived and prevented from use and enjoyment of property on Northside Road, near Bread and Cheese Cove in the Town of Bay Bulls. In her Statement of Claim, Knudsen refers to the property as the “Small Meadow”.

She maintains she is the owner and was never dispossessed of the property. [ 2 ] If Knudsen is right in her claim to ownership of the Small Meadow, the Defendants, Desmond and Rita Williams have a problem because they own the house built on the Small Meadow or some portion of it. [ 3 ] The solicitor for Knudsen filed a Notice of Lis Pendens (meaning, “suit pending”) in the Registry of Deeds claiming the Defendants wrongfully built a house on the Small Meadow, and further claiming Knudsen is entitled to a replacement right of way to other properties owned by Knudsen in the area known as “Bread and Cheese Point”. [ 4 ] The Williams, who are husband and wife, brought two Applications seeking

Summary Trial and dismissal of Knudsen’s claim, and seeking to vacate the Notice of Lis Pendens .

background [ 5 ] Knudsen’s claim to the Small Meadow is grounded in an Indenture, dated 10 November 1904, which conveys various parcels of property from Lydia and James Guzell to Weston K. Williams, the father of the late Hazel Williams Tiller (the "1904 Deed"). Knudsen is the daughter and only child of Hazel Williams Tiller, and inherited the property from her mother in 1986. [ 6 ] The 1904 Deed describes four parcels of land. Specifically: a. “All that piece or parcel of land situate at Bread and Cheese Point in Bay Bulls aforesaid and bounded on the South-west by land of John H.

Williams; Northwest by land of Mary Grace Williams and John H. Williams; North-east by land of Mary Grace Williams; South-east by the Harbour of Bay Bulls containing about two acres or more." ("Lot 1") b. "All that piece or parcel of land situate at Bread and Cheese Point aforesaid and bounded as follows:- on the South by the Main Road; on the East by the land of Thomas Williams on the North by land of William H.

Williams and on the West by land of William Williams together with the dwelling house, stable and all other buildings and erections thereon.” ("Lot 2”) c. “All that garden known as “the kitchen garden” situate on the South side of the said Main Road and bounded on the East by a road leading to the Fishing Room of John H. Williams on the South by the said Fishing room property of the said John H. Williams and on the West by the Garden of said John H. Williams." ("Lot 3") d. "All that small meadow situate on the Eastern side of the road leading to the said Fishing room of the said John H.

Williams and opposite to the Kitchen garden above described." (“Small Meadow") [ 7 ] Knudsen’s grandfather, Weston Williams died in 1931 as a widower and left surviving five children.

One of Knudsen’s uncles had possession of the 1904 Deed, and at some point, the siblings of Knudsen’s mother decided they wanted her to be the owner of the property, and the 1904 Deed was delivered to her. [ 8 ] There has been no evidence presented of any acts of occupation between the 1904 Deed, and the registration of a Deed of Assent between Knudsen as Executrix of her mother’s Estate and Knudsen as Beneficiary on 2 December 2013 (the "2013 Deed"). [ 9 ] The 2013 Deed conveys "all that piece or parcel of land situate at Bay Bulls, NL, and more particularly described in

Schedule "A" annexed hereto."

Schedule "A" to the 2013 Deed includes two surveys and real property reports, referencing three parcels of land; Lot 1, Lot 2, and Lot 3. The surveys and real property reports attached thereto do not reference the Small Meadow. [ 10 ] The 2013 Deed also includes two Affidavits: one by Armond Williams, and a second by Weston Williams. Neither of these Affidavits refers to the Small Meadow. [ 11 ] Knudsen registered a Deed of Confirmation between her as the Confirmor in her capacity as Executrix and in her own right as Confirmee dated 19 February 2016, which purports to convey various rights of way as described in

Schedule “A" (the "2016 Deed"). It does not refer to the Small Meadow. [ 12 ] Knudsen caused a further Deed of Confirmation dated 18 October 2019 (the “2019 Deed”) to be registered making reference to Lot 1 and the Small Meadow. The 2019 Deed contains a recital that Knudsen acquired the property described in the 2013 Deed, and “did not have a complete written description and sketch of the eastern portion of the small meadow.” The 2019 Deed conveys unto Knudsen as Beneficiary “the eastern portion of the Small Meadow” more particularly described in

Schedule “A”. [ 13 ] The

Schedule “A” to the 2019 Deed was prepared not by a certified surveyor but by Knudsen’s husband, Ben Knudsen. The description is not in metes and bounds and consists of a rough drawing by Knudsen with imprecise measurements recorded in meters. [ 14 ] Knudsen is 82 years old and left Bay Bulls and Newfoundland at the age of 13 to live with her mother in Montreal. Her mother continued to visit Bay Bulls on a number of occasions before she died in 1986 at age 69.

After her mother’s death, Knudsen and her husband made several trips to Bay Bulls from Alberta where they are now living to secure Knudsen’s interest in the property. [ 15 ] It is against this background that the Williams submit that there is no basis in law or in fact for Knudsen’s claim to the Small Meadow, or any right of way over property they own or formerly owned. issues [ 16 ] I must decide: 1. Whether the Williams have met the threshold requirements for a

Summary Trial determination? 2. Whether to dismiss Knudsen’s claim and related to this consideration; (

i) Is there a genuine issue for trial? (ii) Is the Court able to find the facts necessary on the existing record to decide the question of fact or law? (iii) Is it nevertheless unjust to decide the question of fact or law on the Application? 3. Whether to vacate the Notice of Lis Pendens ?

analysis Issue 1: Whether the Williams have met the threshold requirements for a

Summary Trial determination? [ 17 ] The Williams applied under Rule 17A of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c.42, Sch. D for

Summary Trial seeking dismissal of the Statement of Claim. [ 18 ] The proper approach to the application of Rule 17A was recently confirmed by our Court of Appeal in Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd , 2020 NLCA 42 . I will follow the suggested Decision Tree referenced (at para. 45) and appearing as a

schedule to the judgment reasons. [ 19 ] Green, J.A. noted (at para. 40) that the threshold inquiry is “designed as a screening device.” At para. 41, the inquiry “is to ensure that the process is not invoked in wholly inappropriate circumstances.” The burden is on the opposing party to convince the Court that the

Summary Trial is an inappropriate process in all the circumstances. [ 20 ] Counsel for Knudsen did raise in his written submissions that the Williams have not established the threshold issue. Both in his written and oral submissions Cole, Q.C focused on how the affidavits and surveys tendered into evidence by the Williams failed to show they acquired title to the Small Meadow or dispossessed Knudsen of the property. That however is not the proper focus of the threshold inquiry. [ 21 ] The two threshold questions are: (

i) Have the Williams as applicants complied with the formal requirements of Rule 17A and put forward an evidentiary basis for their position that Knudsen cannot prove title? (ii) Is there any apparent reason (other than considerations that can be properly dealt with under Rule 17A.03(2)) evident at this stage making it inappropriate to deal with some or all of the issues by

Summary Trial? [ 22 ] Brook Construction (at para. 43) makes clear the real fight on record-adequacy should be left for the application of the second stage of the

Summary Trial inquiry. Although Butler, J.A. dissented in the result in Brook Construction , she stated (at para. 170) on applying the threshold test to the issues raised by the pleadings that: I agree that the second sub-question is not the place to embark on a detailed examination of whether the

summary trial record is sufficient to enable the

summary trial judge to decide a particular issue and that instead the focus is on whether the

summary trial as a process is appropriate to be invoked at all . [ 23 ] I am satisfied the Williams have met the threshold requirements for

Summary Trial. They did not invoke the

Summary Trial process inappropriately. They have complied with the formal requirements of Rule 17A and put forward some evidence bringing into question Knudsen’s claim of documentary title to the Small Meadow. [ 24 ] There is precedent from our Court that a

Summary Trial can be an adequate process for dealing with disputed ownership to land: Barron v. Osmond , 2020 NLSC 131 . [ 25 ] As for the second sub-question of the threshold questions, I will leave the adequacy of the record supporting Knudsen’s claim of ownership to the Small Meadow for discussion at the second stage

Summary Trial inquiry. 2. Whether to dismiss Knudsen’s claim 2(

i) Is there a genuine issue for trial? [ 26 ] A “genuine issue for trial” is one that “is not spurious” and “relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties”: Brook Construction at para. 30. [ 27 ] There is a genuine issue for trial. Knudsen claims ownership of the Small Meadow. The relief sought in Statement of Claim against the Williams is damages and an injunction restraining the Williams and their agents from continuing to occupy the Small Meadow. To grant such relief requires a determination of her ownership interest.

If the Court determines she has no ownership interest, dismissal of the claim would follow. [ 28 ] To ascertain the questions of fact and law to be determined requires a review of the pleadings, the

Summary Trial Application, and supporting Memorandum of Fact and Law. The Statement of Claim consisting of just five paragraphs is short on material facts. It avers Knudsen “is the owner of a land at Bay Bulls.” (emphasis added) [ 29 ] The Statement of Claim further pleads how the Williams came in possession of the Small Meadow, or part thereof. Knudsen retained surveyor, Donald Nolan to prepare a survey of the Small Meadow to be included in a deed for execution by Knudsen.

The Williams or someone on their behalf, without the knowledge of Knudsen, had the survey work completed in 2009 and by the same surveyor engaged by Knudsen. Subsequently, the son of the Williams, Sidney Williams built a house on part of the Small Meadow. [ 30 ] The Statement of Claim asserts by a deed dated 18 May 2012 (the “2012 Deed”) Sidney Williams and his spouse conveyed the Small Meadow to the Williams. However, the position counsel for Knudsen takes in submissions, which I will later elaborate on, is what was conveyed was not the Small Meadow even though the house sits on it.

[ 31 ] In the Reply to Demand for Particulars, Knudsen confirms the Small Meadow was vacant land. Knudsen does not plead any other acts of ownership, control and possession other than attempting to have the Small Meadow surveyed. [ 32 ] The Statement of Defence admits a parcel of land in Bay Bulls was conveyed to them by the 2012 Deed, the survey was completed by Donald Nolan, and Sidney Williams built the house on it. The Williams deny any knowledge Knudsen made efforts to retain Nolan. They deny Knudsen has any ownership interest in the Small Meadow or any part or portion of their property.

They state they and their predecessors in title have been in open, notorious and exclusive possession of their property since at least 1995. They seek a dismissal of Knudsen’s claim. [ 33 ] Neither Knudsen nor the Williams claim a declaration in title. The Williams did not file a counterclaim, as the Defendants did in Barron v. Osmond . The parties in that case each claimed a declaration of title. The Court was able to declare as between the parties the owners of the disputed property.

Boone, J. pointed out (at para. 62) a declaration as to title, other than as between the parties, would involve a judicial investigation of title pursuant to the Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 . [ 34 ] The Williams did raise in both their

Summary Trial Application and Memorandum of Fact and Law that the question of which of the parties holds title to the Small Meadow is a question appropriate for

Summary Trial. The Application and Memorandum in the context of a

Summary Trial are in the nature of a “quasi-pleading”: Brook Construction at paras. 56 and 155. The Williams submit if the Court determines Knudsen had a claim to the area now occupied by them, Knudsen’s title interest was dispossessed by them and their predecessors in title. [ 35 ] Although the Williams have not filed a counterclaim, I am satisfied Knudsen is not taken by surprise on whether she was dispossessed of the property through adverse possession.

In fact, counsel for Knudsen identified this as an issue in his Memorandum and addressed it. [ 36 ] Accordingly, the genuine issue for trial is the determination of the entitlement the parties have to the disputed property. 2(ii) Is the Court able to find the facts necessary on the existing record to decide the question of fact or law? [ 37 ] As for the Knudsen claim, I am unable to find the facts on the existing record to decide the question of law relating to Knudsen’s ownership of the Small Meadow, or the extent of land of which the Small Meadow encompasses.

Regarding the title interest of the Williams, likewise I am unable on the record to find facts establishing they have a title grant or possessory title to the disputed property. The Knudsen Title Claim [ 38 ] The fact Knudsen’s mother was in possession of the 1904 Deed and that Knudsen inherited the real property from her mother’s Estate is not sufficient to establish legal title to the Small Meadow.

The passing of a deed from one person to another, without an actual conveyance to the person, does not constitute a transfer of legal title to property. [ 39 ] Nevertheless, I do not dismiss the submissions of counsel for Knudsen that the doctrine of colour of title may have some significance in Knudsen being able to establish an interest in the disputed land claimed. Knudsen relies on Hall, J’s comments (at paras. 17 – 22) in Murphy v. Gosse , 2007 NLTD 161 , upheld on appeal: Gosse v. Murphy , 2008 NLCA 26 on what constitutes a “colour of title”.

It means any “fact” which has the appearance of supporting the claim of ownership, despite some title defect. I note Hall, J’s comments were made in the context of a petition pursuant to the Quieting of Titles Act for a certificate of title. [ 40 ] Even if the Court were to accept Knudsen has a colour of title (which I am not prepared to do on a

Summary Trial Application), there is the fundamental problem of making a factual finding on the precise location of the Small Meadow without a metes and bounds description. Mr. Knudsen confirmed on cross-examination that he took the description for what he believes the Small Meadow to consist of from an old survey that is not part of the Court record.

The Court is unable to make a finding of fact on what the Small Meadow encompasses without the benefit of a survey and description from a certified surveyor. [ 41 ] The affidavit evidence of Knudsen is inadequate in a further respect to establish the location and boundary lines of the Small Meadow. She relies on inadmissible hearsay evidence of speaking to her mother’s first cousin, Gertie Drew and her own childhood friend, Lorraine Williams to confirm the location of the Small Meadow. She states both confirmed to her that the location was where the Williams subsequently built their house in about 2009.

These are out of court statements and there are no affidavits before the Court from the declarants so I cannot consider this evidence. Title Claim of the Williams [ 42 ] The Williams ground their claim to the Small Meadow back to 1955 with open, continuous, notorious, and exclusive occupation and use of the property by a Lewis Maloney. Maloney sold the property to the Williams by Bill of Sale dated 6 October 1996 attaching a survey description and plan prepared by surveyor, Kevin Williams (the “1996 Williams Survey”).

They also rely on a Deed of Confirmation in 2005 from the Estate of Catherine Maloney (spouse of Lewis Maloney) attaching affidavits of possession stating Lewis Maloney owned and occupied property described in the 1996 Williams Survey and kept it partially fenced for growing hay. [ 43 ] On 18 September 2008, the Williams by deed conveyed to their son and his spouse a certain parcel of the land from the 1996 Williams Survey, along with another portion of land purchased from William Williams and/or the Estate of William Williams.

There are two separate schedules attached with descriptions and plot plans prepared by Don Nolan, and the material one is dated 14 May 2008 (the “2008 Nolan Survey”). [ 44 ] Knudsen’s position is that an examination of the plot plans from the 1996 Williams Survey and the 2008 Nolan Survey reveal the Williams could not possibly have obtained the Small Meadow from Lewis Maloney. Counsel for Knudsen highlights the common survey line, having a bearing of 46° 04’ 01’’ N and a distance of 20.538 metres. The comparison counsel submits clearly shows the

Williams’ claim did not come from Lewis Maloney. What did come from Maloney it is asserted appears to be the northern tip of the property in dispute. [ 45 ] I am unable to determine what it is that the Small Meadow comprises of because no affidavit is before the Court from Don Nolan or any other surveyors that would have allowed for clarification and confirmation. [ 46 ] Counsel for the Williams conceded in argument that the Application for

Summary Trial turned on the lack of Knudsen’s evidence more so than the evidentiary strength of Williams’ claim of title to the Small Meadow. 2(iii) Is it nevertheless unjust to decide the question of fact or law on the Application? [ 47 ] Counsel for the Williams submits Knudsen had an evidentiary obligation to put her “best foot forward”. Since she failed to prove title in response to the

Summary Trial Application, the Court should dismiss her claim and enter judgment against her. I cannot agree. That result would be unjust. I prefer to give directions to the parties so they can resolve the ultimate controversy between them over ownership of the Small Meadow and access rights to other property of Knudsen. [ 48 ] I am giving Knudsen and her counsel the opportunity of perfecting title to the disputed property. The obvious means to do so would be to have her grandfather’s estate that of Weston K. Williams administered and a deed out of the estate into the Estate of Hazel Williams Tiller.

This may not be possible or practicable. Rectification and perfection of title would require a certified survey on what constitutes the Small Meadow. [ 49 ] Justice must be done to both parties. I am providing the Williams with the opportunity to bolster their evidentiary foundation for the claim to that portion of the Small Meadow in dispute. This may mean calling Don Nolan, whom I would consider a material witness for trial, or another qualified surveyor to speak to the existing surveys.

Updated surveys from each of the parties may be necessary to assist the Court in the factual dispute. [ 50 ] The Williams raised their title claim as an issue for

Summary Trial without making any counterclaim. Their pleadings should clearly raise the relief sought. I give leave to the Williams to file a formal counterclaim seeking a declaration of title as between them and Knudsen. [ 51 ] The parties need to turn their minds to whether a judicial investigation title may be warranted pursuant to the Quieting of Titles Act . There could be persons who are not parties with interest in the disputed property.

The Court may then be in a position following the investigation of title and disposition of any adverse claims to issue a declaration and certificate of title to the successful petitioner. [ 52 ] I am not prepared to allow this matter to proceed to trial without ordering a Settlement Conference, pursuant to Rule 39.03. Counsel for the parties are to contact the Assistant Deputy Registrar to arrange for an early Settlement Conference date. [ 53 ] The parties shall decide what, if any further assistance they require from me. As the Judge who has heard this

Summary Trial Application, I am not permitted to preside as the Trial Judge (unless the parties of record consent): Rule 17A.08. I am prepared to conduct the Settlement Conference upon a Joint Request from the parties. I have had the benefit of not only reading the materials filed and hearing submissions, but also visiting and walking the land of the subject properties in the presence of counsel. The parties may want a fresh perspective and for another judge to conduct the Settlement Conference. If so, they may request the matter be assigned to a different judge.

Issue 3: Whether to vacate the Notice of Lis Pendens ? [ 54 ] Knudsen filed the Notice of Lis Pendens on 13 November 2018, some two years and ten months after issuance of the Statement of Claim in January 2015. The Notice claims in relation to two parcels of land. The first parcel is the Small Meadow. The second is a right of way over other property formerly owned by the Williams. There is no reference in the Statement of Claim to the right of way claimed in the Notice. [ 55 ] The Knudsen Affidavits state the Williams paid for a survey for a replacement right of way.

The parties mutually signed a handwritten agreement on 8 September 2014, to give effect to the right of way agreement. They did not execute a formal deed for the right of way. [ 56 ] There is no evidence before me on why or who the Williams conveyed the property concerning the right of way to subsequent purchaser(s), or whether the subsequent purchaser(

s) had due notice of the Lis Pendens . [ 57 ] I am not prepared to vacate the Notice of Lis Pendens relating to either the Small Meadow or the right of way over other property. The Court of Appeal in Paro Enterprises Ltd. v. Murphy , 2015 NLCA 33 (at para. 31 ) set out the principles governing the registration and vacating of a Notice of Lis Pendens . Knudsen filed the Notice after commencing the litigation over the Small Meadow. With regard to the right of way, there are no material facts pleaded.

Knudsen did not provide any explanation why steps have not been taken to amend the Statement of Claim or to make application to add the subsequent purchaser(s). [ 58 ] I give leave to Knudsen to make application to amend the Statement of Claim and to add additional parties. In granting leave to Knudsen, I am not relieving Knudsen from the obligation of offering an explanation for the delay, and the responding parties having the ability to raise prejudice in opposing such application.

Knudsen would still have the legal burden of satisfying the applicable legal requirements for the amendments and addition of any new parties. [ 59 ] A requirement upon a person filing a Lis Pendens is to ensure it is “not overly broad but instead kept as narrow as possible”:

Duffitt v. Conception Bay South (Town), 2016 NLTD(G) 89 at para. 21. Knudsen’s Notice is specific to the two parcels of land identified. The Williams had direct knowledge of the land in dispute. [ 60 ] The Williams have not put evidence before the Court on the hardship to them or on the necessity to vacate the Notice before Knudsen’s claim is determined on the merits. [ 61 ] On the contrary, I am satisfied damages may not be an adequate remedy if Knudsen has no right of access to other properties at Bread and Cheese Point.

She has claimed injunctive relief in the action and the Affidavits filed on her behalf speak to the location of the Williams’ house cutting off access to Lot 3. Without Knudsen having access to other properties, the claim to the Small Meadow and the right of way that Knudsen believed she had secured with the Williams are of such a nature to Knudsen as to be “unique or irreplaceable ”: Infini-T Holdings Ltd. v. Bell Aliant Regional Communications Inc ., 2010 NLTD(G) 205 at para. 19. costs [ 62 ] I make no order as to costs.

Although the Williams did not succeed in their Applications, I am satisfied, in accordance with Rule 17A.05(2), that the bringing of the Applications were nevertheless reasonable to bring. Neither title claim in the disputed property prevailed. The directions I have provided to the parties should allow for effective determination of the issues. [ 63 ] In short, unless the parties can resolve matters through settlement resolution, they have work to do in getting ready for trial. They both will be at risk, if they turn control of future proceedings and the ultimate result over to the Trial Judge.

It is incumbent upon counsel to encourage the parties to find a way to resolve the dispute on a cost efficient and fair basis. conclusion [ 64 ] I conclude: 1. The

Summary Trial Application meets the threshold test. 2(

i) The genuine issue for trial is the determination of the entitlement the parties have to the disputed property. 2(ii) I am unable to find the facts on the existing record to decide the question of entitlement to the property in question. 2(iii) It is unjust to decide on the issues for trial without the directions I have given in these reasons. 3. The Notice of Lis Pendens is not to be vacated until further adjudication and resolution of the legal dispute between the parties. order: [ 65 ] It is ordered that: (

i) The Application for

Summary Trial and the Application to vacate the Notice of Lis Pendens are dismissed without costs. (ii) The parties are to request and attend a Settlement Conference. (iii) Knudsen has leave to amend the Statement of Claim in respect to the right of way claimed in the Notice of Lis Pendens , and seek to name any new party that is necessary and ought to have been added to the Statement of Claim. (iv) The Williams have leave to file a counterclaim seeking a declaration as to title between them and Knudsen. (

v) There is no order as to costs _____________________________ Glen L.C. Noel Justice