Frank George’s Island Investments Ltd. v. Shannon, 2016 NSCA 24

Nova Scotia Court of Appeal Citation: Frank George’s Island Investments Ltd. v. Shannon , 2016 NSCA 24 Date: 20160404 Docket: CA 441130 Registry: Halifax Between: Frank George’s Island Investments Limited, Anton and Gabriele Viehbeck, Seabright Holdings Limited and Paul Pleau Appellants v. Joel Shannon, David and Dinah Grace, Gower Holdings Limited Respondents -and- The Attorney General of Nova Scotia Intervenor Judges: Bryson, Scanlan and Van den Eynden, JJ.A.

Appeal Heard: April 4, 2016, in Halifax, Nova Scotia Written Release: April 11, 2016 Held: Appeal dismissed with costs of $24,000.00, per reasons for judgment of Bryson, J.A.; Scanlan and Van den Eynden, JJ.A. concurring Counsel: Robert H. Pineo and Jeremy P. Smith, for the appellants Douglas Tupper, Q.C. and Victoria Crosbie, for the respondents Sheldon Choo for the Attorney General of Nova Scotia Reasons for judgment: [ 1 ] Following submissions from counsel, the Court unanimously dismissed this appeal with reasons to follow. These are they.

Introduction [ 2 ] But for Frank George’s Investments Limited, all the parties own properties at Umlah Point, Seabright, St. Margaret’s Bay. They have access to their properties from Highway 333 (the Peggy’s Cove Road) along Umlah Road and its extensions, Captain Hemlock Lane and Tern Lane. Frank George’s Island Investments Limited is owned by Anton and Gabriele Viehbeck.

The company owns Frank George’s Island, approximately a mile offshore from Umlah Point. [ 3 ] After purchasing their Tern Lane property in 2001, the Viehbecks made extensive use of Umlah Road to transport equipment, materials, machinery, and workers to and from their properties. They constructed a wharf on their Tern Lane property from which a barge would transport supplies and equipment to the island. [ 4 ] David and Dinah Grace, amongst others, brought a proceeding against Frank George’s Island Investments Limited and the Viehbecks for overuse of the road.

They asserted that portions of the road were subject to private rights-of-way and could not be used to improve the island property. Justice Scaravelli agreed, and ordered that the Viehbecks not use the rights-of-way for commercial purposes. He found that they did not constitute rights-of-way for the respondent, Frank George’s Island Investments Limited or for others to access the island ( 2010 NSSC 368 ). A new proceeding [ 5 ] Apparently undeterred, the Viehbecks persisted and purchased another property on Umlah Road through a company owned by them, the appellant Seabright Holdings Limited.

They resumed their work on the island. The respondents tired of the heavy trucks, equipment and workers traveling by their residential properties. They brought another proceeding to stop it. They claimed both res

judicata and breach of the terms of the rights-of-way. This time they were met with the novel allegation that Umlah Road was a public road, and the appellants were entitled to do as they pleased, consistent with public use. [ 6 ] Owing to differences of parties, property and road location, Justice Chipman found that res judicata could not be established. But he allowed the respondents’ claim because he found that the portion of Umlah Road in question was not a public road, ( 2015 NSSC 76 ).

After retaining new counsel, the appellants brought this appeal alleging Justice Chipman erred by: 1. applying a standard of proof that was higher than the required civil standard on the balance of probabilities. 2. reversing the onus from the applicants (respondents on appeal) to the respondents (appellants on appeal). 3. failing to apply the correct legal test when reaching his conclusion that the relevant portion of Umlah Road was private rather than public. 4. ignoring crucial evidence from local residents regarding historical use of Umlah Road.

The judge did not misapply the standard of proof [ 7 ] The appellants point to this passage in the application judge’s decision to support their argument of a misplaced burden: [39] In assessing this application I adopt the above standard. That is to say, here the Respondents have the burden of proving that the road in question is public.

To succeed, they must prove their case with cogent and substantial evidence on a balance of probabilities, which I prefer to the analogous preponderance of probabilities . [Emphasis added] [ 8 ] The appellants developed their argument by claiming that the judge identified two tests: one involving “cogent and substantial evidence on a balance of probabilities” and “a preponderance of probabilities”. There is no suggestion that the judge was creating different standards rather than referring to two different turns of phrase to describe the same thing.

He adopted the correct civil burden of proof of “balance of probabilities”. [ 9 ] The appellants also complain about a later reference in the judge’s decision of a “high threshold to establish a public right-of- way over private property”, citing this as another misapplication of the standard of proof. In fact, the judge was simply referring to the quality of evidence required to meet the burden.

This is clear from his concluding sentence in paragraph 61: [61] …Given the evidence here, I am not satisfied the Respondents have met their burden. [Emphasis added] The judge did not reverse the onus [ 10 ] The appellants next object that the judge erred in requiring them to establish that Umlah Road was a public road. There is no merit to this submission. Relying on Justice Scaravelli’s decision, the respondents had brought an application for a declaration regarding use of private rights-of-way. In response, the appellants asserted – for the first time – that Umlah Road was public.

The appellants carried the burden of proof on this assertion, as a long line of authority confirms: Viceversa Developments Inc. v. Winnipeg (City) , 2015 MBCA 38 , ¶30, and cases therein cited. The judge neither failed to apply the correct legal test nor ignored crucial evidence when applying it [ 11 ] Issues three and four are argued together in the appellants’ factum. They will be dealt with together here. [ 12 ] The appellants say that the judge ignored three subsections of the Public Highways Act when deciding that the relevant portions of the road were not public.

They are all contained in s. 11(1) which says: 11

(1) Except in so far as they have been closed according to law, (

a) all allowances for highways made by surveyors for the Crown; (

b) all highways laid out or established under the authority of any statute; (

c) all roads on which public money has been expended for opening, or on which statute labour has been performed prior to the twenty- first day of March, 1953;

(

d) all roads passing through Indian lands; (

e) all roads dedicated by the owners of the land to public use; (

f) every road now open and used as a public road or highway; and (

g) all alterations and deviations of, and all bridges on or along any road or highway, shall be deemed to be common and public highway until the contrary is shown. 11(1)(c): Statute labour [ 13 ] First, the appellants say the judge misconstrued the evidence of the respondents’ expert, Dr. Robertson, that no statute labour had been performed on Umlah Road prior to 1953. They claim the judge ignored some of the 19 th c. evidence in Dr. Robertson’s report that the Umlah family had asked to perform statute labour on their own roads rather than elsewhere. The appellants argue this means that statute labour was performed on Umlah Road so it should be a public road within the meaning of s. 11(1)(

c) of the Act . [ 14 ] In fact, the opinion of Dr. Robertson does not say that statute labour was performed on the relevant portion of Umlah Road. There is nothing in the evidence cited by the appellants that shows a palpable and overriding error of the judge regarding the portion of Umlah Road in question. 11(1)(e): Dedication of a public road [ 15 ] Next the appellants assert that the judge failed to properly apply s. 11(1)(

e) regarding “dedication and acceptance”. It is clear from the record that the vast majority of the evidence and argument before the judge addressed the use of, and money spent on, Umlah Road. Little evidence or argument was directed at s. 11(1)(e), but it did not escape the judge’s notice. The judge referred to the appellants’ affidavit evidence as “vague and not helpful in sorting through the issues of road dedication”.

The judge’s reticence was consistent with the modesty of that evidence: [61] Accordingly, while there was evidence that the laneway was used by the public and the public usage had occurred over an extended period of time (over 20 years), the court was not satisfied that there was sufficient usage for a sufficient period of time to establish the necessary intention and acceptance required to prove that dedication applied. There is, therefore, a high threshold to establish a public right-of-way over private property.

Given the evidence here, I am not satisfied the Respondents have met their burden. [ 16 ] Then the appellants refer to evidence of public roads on subdivision plans. A predecessor of the parties, Dr. Henry Reardon, filed at least two subdivision plans at the Registry of Deeds in 1958-60. The appellants say these plans show a 60 foot allowance for a public road. For the first time, in oral submissions, the appellants referred to s. 280(3) of the Municipal Government Act which provides that approved plans filed with the registry of deeds immediately vest title to public roadways in the municipality.

This was never raised before the hearing judge. The respondents obviously had no opportunity to develop evidence, arguments or law with respect to it. Nevertheless, respondents’ counsel noted that s. 280(3) of the Municipal Government Act was only passed in 1998 and would have no application to subdivision plans filed in the 1950s and 60s. 11(1)(f): Roads open and used by the public [ 17 ] Finally, the appellants say the judge failed to properly apply s. 11(1)(

f) of the Act which deems “every road now open and used as a public road or highway” to be a public highway. They say this would apply to the time of application – 2013. They allege ample evidence of “public use” at that time. [ 18 ] The Attorney General points out that this language first appears in the Public Highways Act of 1919 and that the

Interpretation Act requires that the word “now” be interpreted from the time it first appears in legislation. There is no evidence of public use of Umlah Road in 1919; this

section and this argument is of no help to the appellants. Conclusion [ 19 ] Justice Chipman made very strong findings of fact in favour of the respondents. He accepted the persuasive evidence of Shona Poirier of the Department of Transportation and Infrastructure Renewal, that Umlah Road was only public for the first .8 kilometres from the Peggy’s Cove Road. This was consistent with the Department’s records going back to the early 20 th c. [ 20 ] The appellants’ arguments are really an unpersuasive invitation to re-weigh the evidence and disagree with Justice Chipman. That is not our function.

Costs [ 21 ] Like many property disputes, this case was labour intensive. Numerous pleadings, involving all ten parties were filed. Very

extensive affidavit evidence was submitted which would have required lengthy preparation. In addition, expert evidence was entered from Dr. Allen Robertson; Shona Poirier; Dr. James White; surveyor, Thomas Giovannetti; and photogrammetrist, Paul Lumsden. Extensive title work was performed. Eight appeal books were filed. [ 22 ] The application judge awarded $60,000.00 in costs, together with disbursements to the respondents. They submitted that the appeal was important to the respondents, involving the quiet enjoyment of these attractive rural properties. The appeal required extensive work.

They sought 40 percent of trial costs in accordance with Tariff B of Rule 77.18. [ 23 ] It is obvious that this appeal demanded very substantial effort, including the need to address arguments either not made or not pressed before the application judge. Absent compelling policy reasons, successful parties in civil litigation should be entitled to a substantial indemnity. This Court has applied the 40 percent rule in such cases: Bellton Farms Ltd. v. Campbell , 2016 NSCA 1 ; Gallagher v.

Gallagher , 2016 NSCA 2 . [ 24 ] I would dismiss the appeal and award costs of $24,000.00, inclusive of disbursements, to the respondents. Bryson, J.A. Concurred in: Scanlan, J.A. Van den Eynden, J.A.