Meredith v. Nova Scotia (Attorney General), 2014 NSCA 68

Nova Scotia Court of Appeal Citation: Meredith v. Nova Scotia (Attorney General) , 2014 NSCA 68 Date: 20140625 Docket: CA 425121 Registry: Halifax Between: William Wayne Meredith and Elizabeth Jane Meredith Appellants v. The Attorney General of the Province of Nova Scotia Respondent Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: May 28, 2014, in Halifax, Nova Scotia Subject: Real Property; Quieting Title; Practice – Civil Procedure Motion for Directions

Summary: The appellants brought a proceeding under the Quieting Titles Act 1989, R.S.N.S., c. 382 (“ Act ”), seeking a certificate of title of approximately 600 acres, based on possession. That application for directions was dismissed because no plan of the lands claimed was filed and there were deficiencies in the pleadings, supporting affidavits and abstract of title.

Issues: Did the Chambers judge err in deciding that: (1) the Act required the appellants to file a plan of the lands claimed. (2) the appellants’ pleadings and affidavits did not comply with the Act . (3) the appellants’ abstract of title did not comply with the Act. Result: Appeal dismissed. The Chambers judge did not err regarding non compliance with the Act . Moreover, he had adjourned the first application for directions to allow amendments to the Statement of Claim. Following the resumed application, the Chambers judge wrote to counsel with further concerns regarding the abstract of title.

He was not satisfied with the appellants’ responses. While it should normally be possible to give directions, notwithstanding inadequacies in an applicant’s materials, the omissions in this case were significant and uncorrected by the appellants, although they were given an opportunity to do so. The decision of the Chambers judge was not res judicata , and the appellants were free to apply for directions if they chose to address the omissions identified by the Chambers judge. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 17 pages. Nova Scotia Court of Appeal Citation: Meredith v. Nova Scotia (Attorney General) , 2014 NSCA 68 Date: 20140625 Docket: CA 425121 Registry: Halifax Between:

William Wayne Meredith and Elizabeth Jane Meredith Appellants v. The Attorney General of the Province of Nova Scotia Respondent Judges: Oland, Fichaud and Bryson, JJ.A. Appeal Heard: May 28, 2014, in Halifax, Nova Scotia Held: Appeal is dismissed with costs of the appeal in the amount of $500 payable to the Attorney General of the Province of Nova Scotia, per reasons for judgment of Bryson, J.A.; Oland and Fichaud, JJ.A. concurring. Counsel: G. F.

Philip Romney, for the appellants Timothy Reid, for the respondent Reasons for judgment: [ 1 ] William Wayne Meredith and his wife, Elizabeth Jane Meredith, live in Mahone Bay, Lunenburg County. They claim title to parcels of land at Walden in that County. They seek a Certificate of Title under the Quieting Titles Act 1989, R.S.N.S., c. 382, based on their possession of the lands they claim. They started an action under the Act and brought an application for directions before the Honourable Justice C. Richard Coughlan, who dismissed their application ( 2014 NSSC 81 ). The Merediths now appeal.

Background [ 2 ] According to submissions made by counsel before Justice Coughlan, the Merediths’ claim comprises approximately 600 acres. The claimed lands include three different township lots, primarily from Lots 14, 15, 16, Letter B (3 rd Division) of the Lunenburg township allotments. The land is assessed as “resource forestry” and is undeveloped.

It includes islands in Whale Lake adjacent to the township lots in question. [ 3 ] The abstract of title from the records at the Registry of Deeds in Bridgewater filed in support of the Merediths’ action describes Lots 14, 15 and 16 as originating with Crown grants in 1763. With the exceptions of 1786 and 1818, regarding Lot 14, the abstract of title is utterly silent with respect to Lots 14, 15 and 16 from 1763 until the 1980s – a silence of over two hundred years. [ 4 ] No acts of possession are described in the Amended Statement of Claim although possessory title is the basis of the claim.

No survey plan of the lands claimed is attached to the Amended Statement of Claim. Decision of Chambers Judge [ 5 ] The application for directions was first brought on June 13, 2013. Justice Coughlan was troubled by a number of aspects of the action. The application was adjourned because the Statement of Claim did not refer to abutters as required by s. 5(1)(

b) of the Act . Nor were any letters available from the Departments of Transportation and Natural Resources disclaiming any interest in the claimed lands. [ 6 ] An Amended Statement of Claim was issued and served. The application resumed on July 11, 2013. Justice Coughlan continued to have concerns. He followed up the applications with letters to counsel regarding the abstract and claims, to which counsel responded. A second affidavit sworn October 22, 2013 was filed by Mr. Meredith. It did not dispel Justice Coughlan’s concerns. [ 7 ] In his February 27, 2014 decision dismissing the application for directions, Justice Coughlan made a number of findings: [5] In paragraph 5(

f) of the Amended Statement of Claim Mr. and Ms. Meredith seek a Certificate of Title for: “Three Islands in Whale Lake to the Northeast and Southwest of the mainland and portions of Lot 14, Letter B (3rd Division).” [6] That description is too vague to identify the lands for which a Certificate of Title is sought. … [7] Mr. and Ms. Meredith cannot obtain a Certificate of Title for the lands described in paragraph 5(

f) of the Amended Statement of Claim as the description is too vague to allow identification of the lands.

[ 8 ] Section 6(1) of the Act states: 6

(1) The plaintiff shall file with the originating notice an abstract of the title to the land certified by the registrar of deeds for the registration district in which the land lies, or by a solicitor of the Supreme Court, to be a complete abstract of all the records in the registry that affect or may affect the title to the land. [ 9 ] The abstract filed by the plaintiffs sets out, “Prepared by Romneylaw Inc., Certified by G.F. Philip Romney”. What does such a statement “certify”? Nothing. It is not a certification as required by Section 6(1) of the Act.

Notwithstanding the lack of the required certificate, the abstract filed raises more questions than it answers. In reviewing the abstract, I put questions to the plaintiffs’ counsel and in reply received an affidavit of William Wayne Meredith deposed to October 22, 2013. Following are some of the items contained in the abstract, my questions, and answers from Mr. Meredith’s affidavit. … [ 10 ] The abstract filed does not include items which should be included. It states deeds convey land which is not described in the deeds. Mr. Meredith’s affidavit contains assertions for which there is no evidence.

He also deposed the deed by which he and his wife acquired title did not include a description of Lots, 14, 15 and 16, Letter B, (3rd Division). I have absolutely no confidence in the abstract. [ 11 ] It appears Mr. and Ms. Meredith are claiming title to portions of Lots 14, 15 and 16 Letter B (3rd Division) and the abstract filed must contain all documents in the chain of title of any lands for which they are claiming title. The abstract filed does not contain all such documents. The question remains on what basis do Mr. and Ms. Meredith claim title to parts of Lots 14, 15 and 16 Letter B (3rd Division). [ 12 ]

Section 5 of the Act requires a plan of the land conforming to the requirements of the Registry Act for registration shall be attached to the Statement of Claim. A number of plans were filed with the abstract and Statement of Claim and I made the following observations concerning the plans. 1. Plan of Survey by Lester W. Berrigan - Plan No. C-40 dated March 6, 1984 and recorded May 28, 2004 shows property of Arthur R. Crossland at Walden. Mr. Crossland is not shown in the abstract as a predecessor in title.

If it is a plan of the subject property it shows the lands were owned by someone other than the plaintiffs' predecessors in title. 2. Plan of Survey by Lester W. Berrigan Plan No. R-30 dated March 4, 1985 is a Plan of Survey of property claimed by Basil F. Robar at Upper Cornwall, Lunenburg County, Nova Scotia. It is not a plan of the lands being claimed. 3. Plan of Survey by Lester W. Berrigan Plan No. C. 151 dated September 2, 1994. This is a Plan of Subdivision showing Lot 1 property of Mark A. Johansen under conveyance to Ronald A.

Corkum at Upper New Cornwall, Lunenburg County, Nova Scotia, This is not the lands for which a Certificate of Title is sought. 4. Plan of Survey by Berrigan Surveys Limited dated November 2, 2010 Plan No. 14,514 shows some of the lands for which the plaintiffs are seeking a Certificate of Title. [ 13 ] Mr. and Ms. Meredith have not filed a plan or plans of the land as required by

Section 5 of the Act for all the lands for which they are claiming a Certificate of Title. The Appeal [8] The Merediths have appealed alleging that the Chambers judge erred in finding that: (

a) they had not filed a plan as required by s. 5 of the Quieting Titles Act ; (

b) the Statement of Claim, Abstract and Plans of Survey that were filed did not satisfy the requirements of the Quieting Titles Act ; (

c) one of the descriptions was too vague to identify the islands claimed by the Merediths in Whale Lake; (

d) the abstract did not accord with s. 6(1) of the Act ; (

e) the plans did not comply with the Registry Act . These grounds overlap. I would re-order them as follows: (

a) Do the plans filed by the Merediths comply with the Act ? (

b) Do the pleadings conform with the Act ? (

c) Does the Abstract of Title conform with the Act ? [9] In their factum, the Merediths purported to add the following ground of appeal, not contained in their Notice of Appeal, and not discretely argued in their factum: [The Chambers judge] dismissed the motion for the Order for Directions without hearing arguments from the Appellants or the Respondent. [10] This “ground of appeal” is not recited in the factum under “Grounds of Appeal”. It appears in the factum under “Concise Overview of the Appeal”. It is not separately addressed in the factum.

Since there were two appearances before the Chambers judge and several follow up written queries from the court, together with written responses, it is not clear what this “ground of appeal” refers to. But during oral argument, counsel suggested that the Chambers judge’s written decision did not take into account some of the appellants’ letters. The suggestion is that the appellants weren’t “fully heard” before the decision was made.

[11] It is quite true that there was correspondence, further submissions, and a second affidavit filed by Mr. Meredith, all followingthe two hearings before the Chambers judge. The decision followed some months after. The appellants were given ample opportunity toargue their case and address Justice Coughlan’s concerns. Standard of Review: [12] The standard of review with respect to

interpretation of a statute like the Quieting Titles Act is one of correctness: Fawson v. St.Clair, 2013 NSCA 123. But a decision to dismiss an application for directions is interlocutory, procedural, and discretionary. This Courtwill not intervene absent an error in principle or a patent injustice: Innocente v. Canada (Attorney General), 2012 NSCA 36; BurtonCanada Company v. Coady, 2013 NSCA 95. The Quieting Titles Act [13] It will be useful to summarize the origin and purposes of this Act before analysing the Merediths’ grounds of appeal. [14] As Justice Moir said in Frank Georges Island Investments v.

Nova Scotia (Attorney General), 2004 NSSC 136: [27] The scheme and purpose of the statute can be understood in its historical context. This statute was one of those resulting fromthe work of the uniformity commissioners late in the nineteenth century. It responded to the situation, well familiar to Nova Scotians,where the conventional land titles system had broken down in respect of some pieces of land. Owners or locations or both could not beascertained with certainty. The scheme allows a person claiming property to sue the Crown and prove entitlement.

Ultimately, thescheme provides a remedy to successful claimants by way of an order for a certificate of title, which extinguishes most potential or actualcompeting claims and gives the plaintiff clear title. As already stated, this may be achieved summarily or, in cases like the present wherethe Crown or others defend, upon trial.

The scheme includes provisions, of which s. 10 is a part, by which those with potentialcompeting claims are, as much as possible, notified of the proceedings and given an opportunity to contest the plaintiff’s claim and,even, to advance their own claim for a certificate. . . . [29] With these contexts in mind, one turns to the purpose of the statute and there can then be no doubt about the meaning of“interest” in s. 10(2). I adopt the following from Mr. Keith’s pre-hearing brief: Proceedings under the Act relate entirely to the determination of title issues.

The case law is clear that the purpose of the Act is toprovide a mechanism to quiet titles (Bowater Mersey Paper Co. Ltd. v. Nova Scotia and Peck (1988), (NS CA), 83N.S.R. (2d) 162 (N.S.C.A.)) or , put another way, deal with title problems (Baker v. Nova Scotia (Attorney General), [1992] N.S.J. No.222 (N.S.C.A.)). Similar statements of purpose have been expressed in other jurisdiction when discussing corresponding legislation. InPawlett et al v. Newfoundland (1983), 41 Nfld. & PEIR 349 (Nfld. C.A.), Gushue, J.

A. said: The purpose of the Quieting of Titles Act is to confirm title to land in a person (or persons) who is able to prove to a judge’s satisfactionthat his claim to the land is valid. That title would have to be shown to stem from a legal basis or, in the alternative, be based onpossession. As

section 2 of the Act states, it is an investigation of a claimed ‘title’ to land. Thus, the sufficiency of that title, legal orotherwise, must be demonstrated to satisfy the Court that a certificate should issue declaring the claimant to be ‘legal and beneficialowner in fee simple’ of the land. Having regard to this overall purpose, persons with an “interest” in these proceedings involve only those individuals whose legal interestsmight bear upon or affect the determination of any title issues raised in the proceeding. Obviously, this does not preclude a person fromproviding evidence as a witness.

However, it does preclude adding as actual parties (with all the rights and obligations attached thereto)those individuals who cannot claim a legal interest which might bear upon the title issues but simply have a general interest in theoutcome. In short, “interest” in s. 10(2) means having a right or title to, a claim upon or a share in the land in question. [Emphasis added.] [15] Because the Act confirms title and can extinguish it, it is important to identify all possible interests and claimants when acertificate of title is sought.

Practice under the Act [16] The Act has been the subject of comment by the profession. In 1988, A. Lawrence Graham wrote the

article “Quieting TitlesAct: Chambers Practice”. This

article was largely adopted and expanded upon in a paper delivered at a Continuing Legal EducationConference of July 19, 1993 and authored by David P. S. Farrar (now Justice David P. S. Farrar). Both Messrs. Graham and Farrar (ashe then was) observe that the Quieting of Title process contemplates three steps: (1) the Statement of Claim; (2) the application for directions; and (3) the application for a certificate of title. [17] Both authors point out the need for a registerable plan or survey of the lands claimed and inclusion of an abstract of titleconforming with the guidelines set out in Ratto et al. v.

Rainbow Realty Ltd. (1984), (NS CA), 68 N.S.R. (2d) 34,[1984] N.S.J. No. 501, at ¶75. They emphasize the need for a pre-hearing memorandum prior to the application for directions, in orderto give the Chambers judge a “roadmap” of the claim and ensure compliance with the Act. Much of the salutary advice in these papers

can be found in former Practice Memorandum 12 which accompanied the 1972 Civil Procedure Rules . [ 18 ] There is no record of Justice Coughlan receiving any pre-hearing memorandum from the Merediths’ counsel, as recommended by Messrs. Graham and Farrar. (

a) The Plans: [ 19 ] No survey plan was attached to the Merediths’ Statement of Claim, as required by s. 5(1) of the Act . Several plans of neighbouring lands were submitted to the Court, but none of these purported to describe the lands claimed by the Merediths. Counsel for the Merediths asserted that this was not necessary and would be prohibitively expensive. He went on to say that he had obtained a Certificate of Title in many proceedings without a plan or by relying on plans of other lands or Crown grant plans. He cited no authority for this proposition.

This is not a practice with which the Court is familiar. While counsel is correct that the Registry Act does not describe the requirements of a plan per se , it does have requirements for registration of a plan. [ 20 ] In C. W. MacIntosh, Q.C.’s Nova Scotia Real Property Practice Manual (Markham, Ontario: Butterworths Canada Ltd., 1990) he observes: “Section 5 of the Act requires that the applicant submit to the Court a plan of the land and conforming to the requirements of the Registry Act. … In the absence of a survey plan, an application for Certificate of Title under the Act will be denied.” Mr.

MacIntosh cites Levy v. Young , [1993] N.S.J. No. 83 , where Justice Nathanson explained: 52 Counsel for the defendants submits that the Court cannot, or should not, grant a certificate of title under the Quieting Titles Act because the plaintiff has failed to comply with the requirement of s. 5 of the Act that "a plan of the land conforming to the requirements of the Registry Act for registration shall be attached to the statement of claim".

This is a mandatory requirement, which is not fulfilled by the submission upon the agreement of counsel of several old or existing plans of survey of this and nearby lands in the area. … [ 21 ] Not only does the Plan of Survey serve the obvious purpose of identifying land with respect to which a Certificate of Title is sought, but it also serves to identify adjoining owners to whom notice of the claim must be given. Moreover, it assists adjoining owners in identifying what is claimed and may inform their decision of whether to intervene. It is a mandatory requirement and has not been complied with in this case.

The Merediths filed plans of other adjacent or nearby properties which may provide context to the claim. But these plans do not discharge the duty to file a plan of the property to which title is claimed. Justice Coughlan was correct to find that a plan’s absence constituted non-compliance with the Act . (

b) Pleadings: [ 22 ] Section 5(1) of the Act describes what the Statement of Claim should contain: 5

(1) The statement of claim shall contain a concise statement of the facts on which the plaintiff bases the claim and of the nature of that claim, and in particular shall set out (

a) a description of the land in question sufficient to identify it and to distinguish it from all other land; (

b) the names of the owners and occupiers of the adjoining lands, if they can be ascertained, whether the plaintiff or some other person is or claims to be in actual or constructive possession of the land, and in whose name it is assessed for city, town, municipal or other local rates or taxes; and (

c) all the property rights that the plaintiff admits to exist other than the right that the plaintiff claims and all such claims to property rights that the plaintiff knows of but does not admit, and a plan of the land conforming to the requirements of the Registry Act for registration shall be attached to the statement of claim. [ 23 ] The Merediths’ Amended Statement of Claim sets out a claim for possession but does not describe any acts of possession.

While formal proof of the claim based on possession is a matter for a later date, nevertheless, sufficient acts of possession should be described so that the Court, and any interested party, may have some notice of the nature of the claim being advanced. In this case, some basis for the assertion of possession should be described. Whether the Merediths claim actual or constructive possession should be stated. [ 24 ] As the Act requires, the Merediths filed an initial affidavit in support of their claim and affirming the Statement of Claim. But in this case, Mr.

Meredith’s initial affidavit is deficient in a number of respects. [ 25 ] Mr. Meredith deposes that the land subject to the proceeding was conveyed in a 1985 deed – but this deed does not describe the lands claimed. He offers that “…to the best of my knowledge and belief, Water’s Edge Properties Limited or Water’s Edge Development Limited has been assessed as owners of the property since 1986 and thereafter the Plaintiffs have been assessed since 1990.” This information should be within Mr. Meredith’s personal knowledge, as he is an officer of the two corporations.

Notices of Assessment should have been exhibited to his affidavit. [ 26 ] Mr. Meredith’s October 22, 2013 affidavit purports to address some of the problems with the applications, and in particular, paper title. To respond to questions about the original 18 th century crown grants, Mr. Meredith describes contemporary conversations with owners of adjacent properties. Referring to a 1982 deed which describes “Lot No. 12, Letter C,

Section Division…”, Mr. Meredith says “…At the time of this conveyance, Ralph Artemas Dauphinee owned two adjoining lots. That neither Ralph Artemas Dauphinee nor his nephew Dale Albert Dauphinee had any grasp of the numerical designations of the Lunenburg Township Division lots and inadvertently used the wrong reference to the Township Division plan. When Dale Albert Dauphinee decided to sell, surveyor Lester W. Berrigan showed him Lots 14, 15 and 16, Letter B, 3 rd Division.” [ 27 ] How Mr. Meredith “knows” any of the foregoing is unstated.

Moreover, there are demonstrable problems with this evidence, even if taken at face value. How does one lot (12) become three (14, 15 and 16)? How do 300 acres – described in the foregoing 1982

conveyance from Ralph to Dale Dauphinee – become 600 acres as claimed in counsel’s submissions to the Chambers judge? How did surveyor Berrigan decide that the land was really lots 14, 15 and 16, instead of 12? And if that error was detected “when Dale Dauphinee decided to sell”, why is the “error” not corrected in the description of the 1984 Option to Purchase between Mr. Dauphinee and the Merediths’ predecessor, Water’s Edge Property Limited? Perhaps there are explanations, but adequate ones do not appear on the record. (

c) Abstract of Title: [ 28 ] As previously indicated, Justice Coughlan complained that the Certificate of Title did not comply with the Act : “The abstract filed by the plaintiffs sets out, “Prepared by Romneylaw Inc., Certified by G.F. Philip Romney”. What does such a statement “certify”? Nothing. It is not a certification as required by s. 6(1) of the Act.” Section 6(1) of the Act sets out the kind of certificate that is required.

It says: The plaintiff shall file with the originating notice an abstract of the title to the land certified by the registrar of deeds for the registration district in which the land lies, or by a solicitor of the Supreme Court, to be a complete abstract of all the records in the registry that affect or may affect the title to the land . [Emphasis added] [ 29 ] The emphasized language is missing from Mr. Romney’s Certificate. He does not certify that the abstract filed contains all the records in the Registry that affect or may affect title to the land.

Justice Coughlan was quite correct to find non-compliance with s. 6(1). [ 30 ] The abstract itself must comply with Ratto , where Justice Nathanson said (at ¶75): … (

a) It is desirable that an abstract is able to be read and understood by a person who has not searched the title, without reference to any other documents or records. Therefore, it should contain an exact copy or accurate

summary of each legal description, at least the first time it appears in the chain of title. (

b) If more than one lot is searched or more than one title is examined, the legal description for each must be clearly numbered or labeled. (

c) Where any portion of a recorded document is quoted, quotation marks should be used. (

d) References to documents not relating to the land under search should be omitted. (

e) Obscure abbreviations should not be used. (

f) An abstract of title constitutes a precis of the relevant contents of recorded documents. Sometimes those contents require clarification. Where law is quoted, its source must be cited. Where opinions or comments are set forth, they must be clearly labeled and distinguished as such. (

g) Every abstract must contain a certificate of title, and all exceptions to good title must be stated explicitly in the certificate. [ 31 ] The Chambers judge found that: [10] The abstract filed does not include items which should be included. It states deeds convey land which is not described in the deeds. Mr. Meredith’s affidavit contains assertions for which there is no evidence. He also deposed the deed by which he and his wife acquired title did not include a description of Lots, 14, 15 and 16, Letter B, (3rd Division). I have absolutely no confidence in the abstract. [11] It appears Mr. and Ms.

Meredith are claiming title to portions of Lots 14, 15 and 16 Letter B (3rd Division) and the abstract filed must contain all documents in the chain of title of any lands for which they are claiming title. The abstract filed does not contain all such documents. The question remains on what basis do Mr. and Ms. Meredith claim title to parts of Lots 14, 15 and 16 Letter B (3rd Division). [ 32 ] Although Justice Coughlan does not specifically identify what is missing from the abstract, it is devoid of much documentary support for the Merediths’ claim.

For example, in the abstract of title, there is a reference to Lot 14 being conveyed on September 26, 1786 and again on June 18, 1818. Thereafter, there is no information from the Registry of Deeds referring to any of the lands in the chain of title until 1982 when Ralph Artemas Dauphinee conveys “Lot 12, Letter C (2nd Division)” to Dale Albert Dauphinee. The editorial comment in the abstract of title says: “From the title search it would appear that the intent would be to convey Ralph Artemas Dauphinee Lots 14, 15 and 16, Letter B (3rd Division).

Based upon the names shown as abutters.” [ 33 ] The editorial comment has no apparent foundation. No abutters’ names or dates or properties are identified. No “parallel searches” of these abutters verifying the editorial comment are included. The second Meredith affidavit, discussed above, is not much improvement for the reasons already given. [ 34 ] Counsel for the Merediths say all this doesn’t really matter because their claim is based on possession, not paper title.

That may be, but that neither excuses failures to respect the Act , nor addresses the practical concern of identifying those who may have an interest in land that may be affected by the certificate sought. [ 35 ] I agree with Justice Coughlan that the contents of the Statement of Claim, supporting affidavit, abstract of title and “plans” do not comply with the Quieting Titles Act .

Role of the Attorney General: [ 36 ] Other than ensuring that the Crown has no interest in the lands claimed by making inquiry of the Departments of Transportation and Natural Resources, the Attorney General’s representative should review the plaintiff’s materials, at least to ensure formal compliance with the Act (for example, see 3(

c) of Practice Memorandum 12), and the aforesaid 1993

article of David Farrar who observes “counsel representing the Attorney General . . . has taken a more active role in helping the court. The Attorney General’s representative may object to the application if it does not satisfy the requirements of the Act.” [ 37 ] Counsel for the Attorney General played a relatively passive role in these proceedings, exemplified by this exchange with the Chambers Judge on June 13, 2013: THE COURT: You’ve heard some of the things I’ve mentioned about, you know, the abutters and, and so on, and the requirement of section 5(1)(

b) of the Quieting Titles Act. And also the plan situation. So I’m, I’m certainly looking for some assistance from the Attorney General here. What, what, what is the position of the Attorney General with regard to the abutters, and, and with regard to, you know, the plans and so on? MR. REID: The, it’s, I think it’s clear, Your Honour, in our instructions, that we’re really not to play detective in these types of situations. We get a minimum fee…(inaudible word)… THE COURT: Well, I’m, I’m… MR. REID: …on the AGs. THE COURT: Yes, but… MR. REID: And we’re… THE COURT: Then… MR. REID: We’re not… THE COURT: Then… MR.

REID: …really in a position to do detective work, and I think that all that information should be provided to us in a, in a brief, by the solicitors for the Plaintiff. THE COURT: Yes, well, I also have, I have authority under the Act to tell you to, to inquire into something, and, and I want some, I, I, I want to, this is from a forum point of view. This is not, you know, the Attorney General opposing, you know, or… MR. REID: Uh hum. THE COURT: …or whatever, but it’s, I certainly, whether it’s a small fee or large fee or whatever fee, you got to do something for your fee. MR. ROMNEY: Yes. THE COURT: So, and… MR.

REID: Yes. THE COURT: And, and the one thing is, you know, the abutters and so on. MR. REID: Well, clearly,… THE COURT: And… MR. REID: I’m in the same position you are. I looked at the situation, and it says, you know, it’s, we’re not, it’s 600 acres. It’s a large tract of land. I don’t know the background that Mr., Mr. Romney does in the situation, and clearly I have not done the amount of work that Mr. Romney has done to present this to the Court. And I just think that all those in…, all that, all those…(inaudible word)…points that we’re talking about should be addressed.

We don’t know the nature of the title problem. It’s not spelled out in the brief. I’m presuming that it’s not a marketable title. And… THE COURT: Well, what are… MR. REID: …he’s claiming on possession, but it’s really not stated. THE COURT: Okay. Well, and one of the things, it seems to me, that the Attorney General does is, is to make sure that everything complies with, with the Act. MR. REID: Absolutely… THE COURT: And so… MR. REID: …Your Honour.

THE COURT: …that, whether the abutters, whether the statement of claim complies with section 5(1)(

b) of the Act or whatever, or, you know, so those sorts of things are certainly within, I would think, what, what a Court could expect the Attorney General to, to, to tell the Court. Otherwise, what’s the use in having the Attorney General do anything, if they don’t do anything? So… MR. REID: Absolutely. And again at the July 11 hearing: THE COURT: Okay. Are there any outstanding interest in the properties evidence in the abstract of title? MR. REID: Outstanding? I haven’t seen any Your…. I didn’t, I…. THE COURT: Did you review, you reviewed the abstract of title? MR. REID: Other than accepting Mr.

Romney’s affidavits and positions on the, I haven’t done an independent review of the… THE COURT; Of the ab…? MR. REID: …of the abstract. [ 38 ] This is not the kind of due diligence described in the articles cited above. While it is clear that the Attorney General’s representative receives a very modest fee, he should be able to advise the court whether a plaintiff’s Statement of Claim, abstract, plans, and affidavits comply with the Act . He does not need to do an independent inquiry – but he should be satisfied that what the plaintiffs offer meets the formal requirements of the Act .

Justice Coughlan did not receive that kind of assistance from the Attorney General’s counsel. Application for Directions: [ 39 ] Section 9(5) of the Act describes the process of an application for directions: Directions by judge 9

(5) Upon the application for directions, and after receipt of the referees report, if any, the judge (

a) shall determine what persons shall be added as defendants and what other persons shall be advised that they may intervene and shall direct how and on what terms the statement of claim and the originating notice or notice of right to intervene shall be served on them; (

b) may permit the claim or statement of claim to be amended and may require that any such amendment be verified by affidavit; (

c) shall direct what pleadings are to be delivered and what interlocutory proceedings may be taken in the action; (

d) may determine how any issue of fact is to be tried, and whether any question of law shall be determined before, at or after the trial or by reference to the Appeal Division of the Supreme Court; (

e) may make any order as to costs that the judge deems proper in the circumstances; and (

f) may give any other direction that the judge deems proper to effect the purposes of this Act in the circumstances. The language in subsections 5(

a) and (

c) is mandatory. But a judge cannot “…determine what persons shall be added as defendants and what other persons shall be advised that they may intervene…”, if he is not satisfied that all potential interests have been identified. He may order a reference (for which the plaintiffs would ordinarily have to pay) but he need not do so. [ 40 ] Justice Coughlan was correct to note the shortcomings in the materials filed in support of the application for directions claimed in this case. A principal purpose of an application for directions is to identify those to whom notice of the action should be given.

One can understand Justice Coughlan’s concern that this could not be done in light of the deficiencies in the materials before him. He did try to resolve his concerns with post-motion correspondence to counsel. That did not satisfy him. But were other options available? [ 41 ] The decision to dismiss the application for directions is unusual. It reflects Justice Coughlan’s deep dissatisfaction with what he was given. Arguably, he could have granted the application on conditions such as the filing of a plan and an improved abstract.

He could have referred the matter to the Attorney General in accordance with s. 9(1) of the Act : Reference to Attorney General 9

(1) Upon the application for directions, if the judge is not satisfied that the statement of claim and the supporting materials disclose all the persons and interests likely to be affected by the certificate of title, the judge may refer the questions on which the judge is not satisfied to the Attorney General, or a barrister nominated by the Attorney General, to investigate in the interest of all adverse claimants. [ 42 ] Ordinarily, one would expect that the court would be able to give directions on an application to settle them.

But in this case, there had been not one statement of claim, but two (the amended statement of claim); not one affidavit from the Merediths, but two; not one hearing, but two, all without satisfactory response to Justice Coughlan’s queries. Justice Coughlan also wrote several letters to the Merediths’ counsel following the hearings. The replies he received were clearly unsatisfactory, as his decision makes plain. His dilemma was compounded by ineffective assistance from counsel for the Attorney General.

The court does not have an obligation to engage in an endless dialogue of indefinite duration yielding indeterminate results.

[ 43 ] In the unusual circumstances of this case, and given the numerous deficiencies identified by Justice Coughlan, it was open to him to dismiss the application. That is not an end to the matter. A procedural decision such as this is not res judicata . If the plaintiffs wish to pursue a certificate of title, they know what they need to do to comply with the Act and can reapply for directions, should they choose to remedy the omissions in their materials. [ 44 ] In this Court, the Attorney General’s representative asked for costs in the proceedings below. He advised that these were contested by the Merediths.

That is not a matter for us. [ 45 ] I would dismiss the appeal, with costs of the appeal in the amount of $500 to the Attorney General. Bryson, J.A. Concurred in: Oland, J.A. Fichaud, J.A.