MacDuff v., 2013 NSCA 31

NOVA SCOTIA COURT OF APPEAL Citation: MacDuff v. 3209292 Nova Scotia Ltd. , 2013 NSCA 31 Date: 20130305 Docket: CA 371089 Registry: Halifax Between: James Leslie MacDuff and Robert Coles MacDuff Appellants v. 3209292 Nova Scotia Limited Respondent JUDGE : The Honourable Justice Peter M.S. Bryson APPEAL HEARD : January 30, 2013 SUBJECT : Real Property. Title.

Interpretation of Deeds and Documents. Boundaries. Declaration of Interest in Land. Fresh Evidence.

SUMMARY : Parties disputed ownership of an island. Trial judge found respondent had a better chain of title to the island and granted a declaration that the appellants had no interest in the Island. Appellants alleged judge erred in his

interpretation of deeds and other documents and that he misinterpreted survey evidence. Appellants sought to introduce various documents as “ fresh evidence ” . ISSUES :

(1) Should the “ fresh evidence ” be admitted?

(2) Did the judge misconstrue deeds in the parties ’ chains of title?

(3) Did the judge misconstrue survey evidence? RESULT : Appeal dismissed. Trial judge did not err in law when interpreting the deeds in each party ’ s chain of title. He did not err

by preferring deed descriptions to extraneous evidence such as a Sheriff’s advertisement of land for sale. He made no palpable andoverriding error when accepting the respondent’s surveyor’s opinion that the island was included in respondent’s deed descriptions. Nor did trial judge err in rejecting opinion of appellants’ surveyor whose survey did not accord with source documents in appellant’schain of title. Appellants’ survey showed much larger lot of land than their deed descriptions. Fresh evidence not admitted as not meeting the criteria in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759.

The evidence eitherpredated the trial and was available and/or was not relevant. This information sheet does not form part of the court’s judgment. Quotes must be fromthe judgment, not this cover sheet. The full court judgment consists of 14 pages. NOVA SCOTIA COURT OF APPEAL Citation: MacDuff v. 3209292 Nova Scotia Ltd., 2013 NSCA 31 Date: 20130305 Docket: CA 371089 Registry: Halifax Between: James Leslie MacDuff and Robert Coles MacDuff Appellants v.

3209292 Nova Scotia Limited Respondent Judges: Hamilton, Beveridge and Bryson, JJ.A. Appeal Heard: January 30, 2013, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A.; Hamilton and Beveridge, JJ.A. concurring. Counsel: James Leslie MacDuff, for the appellants, in person Colin Bryson, Q.C., for the respondent Reasons for judgment : [ 1 ] 3209292 Nova Scotia Limited (Number Co.) sought a declaration in the Supreme Court that the appellants (the MacDuffs) had no interest in an island at Lawrencetown which both parties claimed (the “ Island ” ).

Number Co. relied on both its paper title and adverse possession to maintain its claim. Following a three-day trial, the Honourable Justice N. M. Scaravelli granted the declaration. He was satisfied that Number Co. had a better chain of title to the Island. Accordingly, it was unnecessary to consider adverse possession. He found that the MacDuffs had no interest in the Island ( 2011 NSSC 363 ). [ 2 ] The MacDuffs appeal alleging errors in Justice Scaravelli ’ s

interpretation of the facts and documents in Number Co. ’ s chain of title. Although no errors are alleged in the trial judge ’ s assessment of the MacDuffs ’ title, such errors are implied in some of their arguments. [ 3 ] For reasons elaborated on below, I would dismiss the appeal. BACKGROUND: [ 4 ] The Island is linked to the mainland by a marsh. It protrudes into Lawrencetown Lake – sometimes referred to as Lawrencetown Harbour. In either case, it is open to the sea and is subject to tidal action.

Number Co. claims that the Island is part of the property on the adjacent mainland which can be traced back at least to the 1820s. It says that the Island is included in the property known as the Susana Green Dower lands, created by a Probate Court Partition Order in 1827. [ 5 ] For their part, the MacDuffs have a paper title which begins in 1848 to part of an island known as “ Gooseberry Island ” . The MacDuffs own all but the northeastern corner of Gooseberry Island.

They claim that Gooseberry Island is the Island. [ 6 ] Before discussing the grounds of appeal and evidence in any detail, it will be useful to consider the role of the Court of Appeal in reviewing a trial decision, especially as one of the parties is self represented and may not be familiar with the different roles of a trial court and a court of appeal. ROLE OF APPEAL COURT – STANDARD OF REVIEW:

[7] An appeal is not an opportunity for an appellant to retry the case. Our ability to intervene and changethe decision of a trial judge is very limited. As Justice Thomas A. Cromwell said in Children’s Aid Society of Cape Breton-Victoria v.A.M., 2005 NSCA 58: [26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise ofdiscretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its ownexercise of discretion for that of the judge at first instance.

This Court is to intervene only if the trial judge erred in legal principle ormade a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidenceand in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellatedeference except in the presence of clear and material error: [citations omitted]. [Emphasis added] [8] The infelicitous expression “palpable and overriding error” simply means that any factual error must beclear and material to the factual conclusion which is challenged.

The Ontario Court of Appeal put it this way in Waxman v. Waxman(2004), (ON CA), 186 O.A.C. 201: 296 The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result.A “palpable” error is one that is obvious, plain to see or clear: Housen at 246.

Examples of “palpable” factual errors include findingsmade in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension ofevidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. 297 An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where thechallenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a“palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to theroot of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254 at 281. [9] Waxman has been endorsed by our court: Mason v.

Partridge, 2005 NSCA 144 at ¶ 16, and Flynn v.Halifax (Regional Municipality), 2005 NSCA 81 at ¶ 14; also see: Sable Mary Seismic Inc. v. Geophysical Services Inc., 2012 NSCA 33at ¶ 59. [10] The

interpretation or construction of a deed is a question of law (Metlin v. Kolstee, 2002 NSCA 81 at ¶70). The first principle of construction is to give effect to the words in the whole deed; (Knock v. Fouillard, 2007 NSCA 27 at ¶ 27). But in land actions a dispute may not always be resolved simply by looking at deeds or other instruments. Sometimes it is necessary tohave evidence of the appearance and condition of the land itself to assess to what extent it accords with the instruments that allegedlyrefer to it.

Such is the case here where there is a dispute about what lands are actually referred to in the deeds put forward in evidence. [11] To assist themselves and the court, both parties retained surveyors to depict the land or express opinionsconcerning whether the Island was included in their respective chains of title. For the trial judge, this means making decisions of bothlaw and mixed fact and law. From the Court of Appeal’s point of view, we will review the judge’s

interpretation of deeds for errors oflaw. For mixed findings of fact and law without an extricable question of law, we use the “palpable and overriding” error standard. It isnot enough that we may disagree with the trial judge’s

interpretation of evidence. We cannot change findings of fact unless the trialjudge makes a clear and material error of fact. FRESH EVIDENCE: [12] The MacDuffs bring a fresh evidence application to adduce additional documentary evidence. This courtassesses the admissibility of this evidence on the criteria set out in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759:

1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, (although this principle is less rigorously applied in criminal cases than in civil cases); 2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; 3) The evidence must be credible in the sense that it is reasonably capable of belief; 4) It must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Palmer has been routinely applied by this court: R. v.

West , 2010 NSCA 16 ; R. v. Fraser , 2011 NSCA 70 ; R. v.

Ross , 2012 NSCA 56 . [ 13 ] The MacDuffs have tendered a binder with the following documents described as “ fresh evidence ” : 1) October 7, 2011 – decision of Justice Scaravelli 2) December 22, 2011 – costs decision of Justice Scaravelli 3) October 20, 2012 – Kevin Blades ’ response to a letter from James MacDuff 4) May 4, 2011 – Glen Myra shoreline sketch 5) July 26, 2012 – certification by the Registrar of Crown lands of the Chamberlain plan referred to later in this decision 6) October 14, 2010 – Stantec Marsh Delineation for Lawrencetown Lake 7) Copy of an August 12, 1874 deed showing description errors 8) Copy of a March 11, 1837 Land Boundary Agreement showing John and Liam Crook living in Peggy ’ s Cove in 1837 9) Undated plans showing wet lands owned by the Crown in Lawrencetown area [ 14 ] The MacDuffs attempt to adduce the “ fresh evidence ” probably arises from a misunderstanding of what fresh evidence constitutes.

The two decisions of Justice Scaravelli are taken into account by this court as a matter of course in the appeal. The August 20, 2012 letter from Kevin Blades to James MacDuff describes mapping changes made by the Land Registry as a result of Justice Scaravelli ’ s decision and subsequent order. It does not satisfy either criteria 2 or 4 of the Palmer test. The documents in items 4, 5, 6, 7 and 8 all pre-date the trial and could have been adduced at trial if thought relevant at that time. These documents do not satisfy either criteria 1, 2, or 4 of the Palmer test.

Item 9 is not dated but the marsh delineation adds nothing to the title issues which Justice Scaravelli had to resolve and which face this court on appeal. It does not meet criteria 3 and 4 of the Palmer test. I would not admit any of the proposed “ fresh evidence ” which the MacDuffs wish to adduce (Item 5, the Chamberlain plan is already in evidence). GROUNDS OF APPEAL: [ 15 ] The MacDuffs have divided their factum into two parts. Part one challenges deeds in Number Co. ’ s chain of title. Part two addresses the MacDuffs ’ own chain of title and surveys.

It will be convenient to consider the grounds of appeal in chronological order as follows: 1) The trial judge misconstrued the 1828 deed to Robert Noble in Number Co. ’ s chain of title as including the Island; 2) The trial judge misconstrued the 1891 Sheriff ’ s Deed in the Number Co. ’ s chain of title as including the Island; 3) The trial judge erred in finding that Number Co. owned the Island when Number Co. ’ s surveyor showed that the Island was really a peninsula; 4) The trial judge erred when construing the deed into Number Co. and in particular erred in his understanding of the eastern boundary of these lands as including the Island; 5) The trial judge erred in his understanding of the size of the lands owned by the MacDuffs on Gooseberry Island, (which they claim to be the Island);

INTERPRETATION OF DEEDS: 1. Deed to Robert Noble [ 16 ] The MacDuffs challenge the trial judge ’ s

interpretation of certain deeds and plans in Number Co. ’ s chain of title, beginning with a deed from Joseph Green to Robert Noble in 1828, ( “ Noble deed ” ). This is the first deed which follows the July 2, 1827 division of Benjamin Green ’ s estate ordered by the Probate Court. A partition order dated July 2, 1827 divided the lands of the late Benjamin Green among his heirs and granted his widow, Susana, a dower interest in various lands which included five lots marked “ L ” as depicted on “ ...the general plan hereto annexed... ” .

A January 22, 1825 plan prepared by surveyor John Chamberlain notes that it is “ a plan of the late Benjamin Green Esquire Estate in the first division of Lawrence Town as divided between the widow and heirs under authority of a warrant from the Honourable Charles Morris, Surrogate General. ” That plan shows five lots marked “ L ” , including the Island. (The plan of John Chamberlain referred to in the decision is January 22, 1823.

The last numeral is hard to discern but other evidence in the chain of title suggests it was dated 1825, not 1823). [ 17 ] The MacDuffs question whether the 1825 Chamberlain plan is the plan actually referred to in the Probate Court partition order. But there is an obvious consonance between the two as they both refer to a partition of the estate of Benjamin Green, they both refer to Susana Green ’ s dower, the plan recites the warrant authorizing division, and the five parcels referred to in the order appear on the plan marked with the letter “ L ” .

The trial judge was clearly satisfied that this plan formed the basis of the probate order for division and the evidence supports his conclusion. [ 18 ] The MacDuffs challenge the trial judge ’ s

interpretation of the 1828 Noble deed.

The relevant part of that deed conveys: Five pieces or parcels of land marked with the letter L on the said plan and with the words “Widow’s Dower” or “Dower” in red ink being all situate in the said first division of Lawrence Town and three of the said pieces lie together and are bounded on the North by the lot letter A, number Ten assigned to Richard Green, on the West by lot letter K, number Eleven, assigned to Elizabeth Green, otherwise Stowell, on the South and East by the Waters of Lawrence Town Harbour. ... ...as by reference to the said plan will appear. [ 19 ] The MacDuffs say that this conveyance does not include the Island because there is a marsh lying between the mainland and the Island and this cannot be included in the pieces of land that “ lie together ” because a marsh is not land.

The Island cannot be included because it is not touching or joined to the mainland. They allege that the words “ widow ’ s dower ” or “ dower ” have to appear in red ink on the lands being conveyed. There is no red ink markings on the marsh in the plan.

The MacDuffs say the Chamberlain plan is not compatible with the Noble deed because it only shows four pieces of land and one marsh lot, all marked “ L ” and not five pieces – the marsh cannot be included because it is not “ land ” . [ 20 ] In response, Number Co. says: • The partition order for the estate of Benjamin Green gave Susana Green a life interest in “ five lots marked “ L ”” on the general plan; • The general plan referred to in the partition order is the 1825 Chamberlain plan as there is no other plan with letters “ L ” or any other letters referred to in the partition order; • While the marsh lot shown as “ number 5 “ L ”” on the general plan may not have “ widow ’ s dower ” or “ dower ” written on it in red ink, the Island showing as “ number 8 “ L ”” on the plan clearly does have writing in red, although with the passage of time it is difficult to read what it says;

• The

preamble to the description of the deed from Green to Noble recites that the conveyance was “ for all the lots set over to Susana Green for her dower ” , not just some of them, and that comprises all lots marked “ L ” , including the Island; • The land in the Noble deed is stated to be bounded on the east by the waters of Lawrencetown Harbour which would not be an accurate description if the boundary was marsh lot 5 “ L ” ; • It is not logical to suggest that the five lots marked “ L ” on the petition order and general plan, were reduced to three lots marked “ L ” in the deed to Noble.

If it was intended to exclude the Island there would have been much clearer ways of doing so. [ 21 ] Number Co. ’ s arguments are compelling and clearly found favour with the trial judge. He was correct. He did not err in law in his

interpretation of the Noble deed. 2. 1891 Sheriff ’ s Deed [ 22 ] By an 1891 Sheriff ’ s Deed the Green Estate dower lots were conveyed to Number Co. ’ s predecessors, the Conrads. The description provides: All those lots of land part of the real estate of the late Benjamin Green, situate at Lawrencetown, in the County of Halifax, which were set off and allotted to Susan Green his widow as her dower-at-law on the division of the said Estate under the authority of the Court of Probate at Halifax, the said parcels consisting of five lots marked L...

The description concludes with the words “ containing by calculation 311 acres and known as the dower farm. ” [ 23 ] The MacDuffs argue that the metes and bounds description in the deed is not consistent with the Island being included: ... South 24 degrees 15 minutes West to the channel through the marsh and by the said channel Easterly Northe Easterly and Northerly to the Southern line of the tract of land formerly allotted to Richard Green first above mentioned.

This argument assumes what it sets out to prove: because the Island is an island, the shoreline boundary must run between the Island and the mainland, not around the Island. However, such an argument is not necessary where the intention of an instrument is clear. In this case, the intention to convey all the dower lots is evident from the reference to the five lots marked “ L ” which originate with the 1825 Chamberlain plan.

It would be an error of law to favour the MacDuffs ’ speculative argument about the description over the clear intention to convey the Green dower lots, ( Knock, supra , ¶ 27). [ 24 ] The MacDuffs suggest that construction of the 1891 Sheriff ’ s Deed should depart from the language in that Deed, based on documents relating to the Sheriff ’ s sale which resulted in the deed. The Sheriff ’ s report does not clearly indicate that the five dower lots marked “ L ” were sold to anyone other than the grantees in the 1891 Deed, (predecessors in title to Number Co.).

The four “ lots ” sold by the Sheriff are not cross-referenced to the dower lots. It appears that more land is being sold than just the dower lots. Even if the Sheriff ’ s report could be construed as inconsistent with the 1891 Deed, the Deed description must prevail at law over the “ extraneous ” Sheriff ’ s report. [ 25 ] Finally, the MacDuffs argue that since the land conveyed was 311 acres, it could not include the Island because an earlier 1851 Chancery conveyance of the property comprised 360 acres.

However, the 360-acre figure does not originate in any description in the chain of title but in an advertisement for foreclosure and sale which appears in the October 1, 1851 edition of the Royal Gazette . Once again, Number Co. correctly argues that this is an extraneous document to which no reference need be made because there is no ambiguity on the face of the 1851 deed itself. The advertisement cannot “ trump ” the deed.

3. Island v. Peninsula [ 26 ] The MacDuffs make much of the fact that Number Co. ’ s chain of title does not refer to an “ island ” . This does not matter because, as the trial judge explained, the Island is clearly in the chain of title based on the Probate Court ’ s order dividing the estate of Benjamin Green and giving five lots marked “ L ” – including the Island – to his wife Susana. Moreover, the surveys indicate that there is a marsh between the mainland and the Island which makes the Island contiguous with the mainland.

The evidence from members of the Conrad family was that the marsh – or “ bog ” as they referred to it – could be readily traversed on foot during low tide. At high tide, it would be more difficult and pedestrians would need boots or, in some cases, “ hip waders ” . So depending on whether one was thinking of low or high tide, the Island could be considered independent of the mainland or a peninsula of it. [ 27 ] The trial judge correctly concluded that this was a non issue: [3] The parties acknowledge this property has been referred to as Madame Guin Island.

The plaintiff asserts it is also known as Conrad's Island. The defendants state that it is Gooseberry Island, as referred to in their deed. There is some debate of whether this property is technically an island, since it is separated from the mainland by a saltwater marsh. Nothing turns on this issue, so for convenience I refer to the property in dispute as "The Island". 4.

Deed to Number Co. [ 28 ] This deed contains a contemporary description with the last course being the shoreline described as: ... following the various courses of the Ordinary High Water Mark of Lawrencetown Lake, a distance of 9,700 feet more or less to the point of commencement. [ 29 ] The MacDuffs argue that this description could not include the Island because an island is separated from mainland and would not be included in “ shoreline ” . Number Co. replies that it is obvious from reviewing the survey of Mr.

Nutter that a shoreline measurement excluding the Island would be substantially less than 9,700 feet. Number Co. also refers to the unchallenged opinion of their surveyor that Number Co. ’ s deed included the Island. The trial judge described Mr. Nutter ’ s survey as “ not impugned ” . He referred to Mr. Nutter ’ s overlay of his survey with the Chamberlain survey plan. The trial judge noted: [51] ...The overlay is not a perfect match, but I am satisfied it is close enough, particularly given the historical nature of the survey included in the plaintiff’s chain of title.

As such, I assign more weight to the survey and expert opinion of Mr. Nutter. [ 30 ] Both the internal evidence of Number Co. ’ s deed and external survey evidence is consistent with the trial judge ’ s conclusion that the Island was included in the lands conveyed to Number Co. He made no error of law or palpable and overriding error of fact in coming to this conclusion. MACDUFF CHAIN OF TITLE: [ 31 ] One would have thought that if two parties claim title to the same land, their chains of title would have something in common or the abutting land ownership would indicate a possible commonality of title.

No such coincidence occurs here. The MacDuff chain of title begins in 1848. It is clear that they have title to part of an island known as “ Gooseberry Island ” . There is no evidence that the Island was ever referred to as “ Gooseberry Island ” . Interestingly, the MacDuffs submit in their factum that their title derives from William Bremner. There is a map in evidence showing a mainland lot owned by William Bremner and an island in near proximity to that mainland lot in the Lawrencetown Lake called “ Gooseberry Island ” .

But William Bremner ’ s property is substantially to the north and to the east of the Susana Green dower lands. Similarly, Gooseberry Island is substantially to the north and east of the Susana Green dower lands. It is nowhere near the Island.

5. Gooseberry Island - Lot Dimensions [ 32 ] To bolster their claim to the Island, the MacDuffs filed a report from surveyor Glen Myra. He opined that the Island was Gooseberry Island and that it belonged to the MacDuffs. Unfortunately for Mr. Myra, he was not given a complete abstract of title before he rendered his opinion. He was not aware of and did not examine Number Co. ’ s chain of title. Mr. Myra also admitted that the title abstract provided to him by the MacDuffs did not accord with the underlying source documents.

The measurements he took and the dimensions he laid out were inconsistent with those documents. His survey produced a substantially larger lot in favour of the MacDuffs than described in their abstract of title. [ 33 ] In their factum, the MacDuffs argue that the distance description in their chain of title is incorrect – that the courses which read “ two chains and twenty links ” should read “ ten chains and twenty links ” . The MacDuffs refer to alleged errors by the Land Registry office to support this argument. The MacDuff argument on this point is sheer speculation. There simply is no evidence to support it.

The trial judge observed: [48] Mr. Myra concluded that the survey he prepared from the defendants' Title Abstract was comparable to the physical geography of The Island in dispute. However, Mr. Myra's survey was fundamentally flawed. He was clearly following an erroneous Title Abstract provided to him by the defendants. Mr. Myra provided no explanation for the metes and bounds figures that he assigned in his survey. He agreed that his measurements did not accord with the relevant deeds. Further, Mr.

Myra did not consider the plaintiff's Title Abstract for the possibility that the defendants chain of title was for an island named Gooseberry Island to the North of The Island in dispute. [ 34 ] He concluded: [50] For the reasons discussed, I find that the Myra Survey was fundamentally flawed. By contrast, the plaintiff's survey prepared by Mr. Nutter was not impugned.

The trial judge ’ s assessment both of the MacDuff chain of title and of the survey evidence disclose neither an error of law nor a palpable and overriding error of fact. [ 35 ] The trial judge was satisfied that the MacDuffs had no interest in the Island and that Number Co. had a better chain of title: [55] The defendants’ survey was fundamentally flawed. The defendants’ chain of title is for an island much smaller than The Island in dispute in this Action. By contrast, the plaintiff’s survey is consistent with a comparable survey included in its chain of title.

I am not satisfied that the defendants have impugned the plaintiff’s chain of title. [56] Upon careful analysis of the relevant documents, between parties to this Action, I find, on a balance of probabilities, that the plaintiff has the better chain of title to The Island. The defendants may have a claim to an island named Gooseberry Island, however I am not satisfied that this is The Island in dispute in this Action. This finding is determinative for the Action. [ 36 ] The judge made no error of law or palpable and overriding error of fact or mixed fact and law in coming to his conclusion. COSTS:

[ 37 ] The MacDuffs submit that they have “ done nothing wrong ” and suggest no costs should be awarded. Costs are not awarded against a losing party or to a successful party because the losing party has done “ something wrong ” although that may well be the case. Costs are partial indemnification to the successful party for their success. There is no reason to depart from the usual rule on costs. [ 38 ] I would dismiss the appeal and order that the MacDuffs pay Number Co. $4,500 costs, inclusive of disbursements. Bryson, J.A. Concurred in: Hamilton, J.A. Beveridge, J.A.