Naugle v. Cleary, 2016 NSCA 56

Nova Scotia Court of Appeal Citation: Naugle v. Cleary , 2016 NSCA 56 Date: 20160706 Docket: CA 440268 Registry: Halifax Between: Bryan Naugle Appellant v. Thomas G. Cleary, as Trustee of the Woodlands of Jeremiah Cleary and the Attorney General for the Province of Nova Scotia Respondents Judge: The Honourable Justice Elizabeth Van den Eynden Appeal Heard: January 21, 2016, in Halifax, Nova Scotia Subject: Real property; quieting of title; use of estate inventory/extrinsic evidence; Civil Procedure Rule 55.13

Summary: Appeal from decision of Justice Jamie Campbell ( 2015 NSSC 90 ) wherein he quieted the title to competing ownership claims to real property and issued a certificate of title to the respondent trustee. The trial judge was of the view that the competing chains of title were close in quality, with the trustee’s title being no worse “ and perhaps just a bit better than that of Bryan Naugle .” In drawing this conclusion, the trial judge placed considerable weight on extrinsic evidence (estate inventory). Whether he erred in doing so is the central issue under appeal.

The Court also clarified the limits placed on a party calling direct evidence from their own expert under Civil Procedure Rule 55.13. Issues:

(1) Did the trial judge err in giving too much weight to the inventory of the Estate of Andrew Cleary when assessing the strength of the competing chains of title?

(2) Did the trial judge err in limiting the direct evidence of the appellant’s expert? Result: Appeal allowed and new trial ordered. The Court will accept further costs submissions in writing unless the issue is resolved between the parties. 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 16 pages. Nova Scotia Court of Appeal Citation: Naugle v. Cleary , 2016 NSCA 56 Date: 20160706 Docket: CA 440268 Registry: Halifax Between: Bryan Naugle Appellant v.

Thomas G. Cleary, as Trustee of the Woodlands of Jeremiah Cleary and the Attorney General for the Province of Nova Scotia Respondents Judges: Bourgeois, Hamilton and Van den Eynden, JJ.A. Appeal Heard: January 21, 2016, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Van den Eynden, J.A.; Bourgeois and Hamilton, JJ.A. concurring Counsel: Colin D. Bryson, Q.C., for the appellant Michelle Kelly and Justin Morrison, for the respondent Thomas C. Cleary as trustee Edward A.

Gores, Q.C. for the respondent Attorney General of Nova Scotia (not participating) Reasons for judgment: Introduction [ 1 ] This appeal arises from a decision of Justice Jamie Campbell ( 2015 NSSC 90 ) wherein he quieted the title to competing ownership claims to real property and issued a certificate of title to trustee Thomas Cleary. Of the 300 acres involved, appellant Bryan Naugle claimed ownership to approximately 100 acres.

The trial judge was of the view that the competing chains of title were close in quality, with the trustee’s title being no worse “ and perhaps just a bit better than that of Bryan Naugle .” Whether that assessment was erroneous lies at the center of this appeal. Background [ 2 ] Thomas Cleary, the grandson of the late Jeremiah Cleary, is the current trustee of lands formally held by the Estate of Jeremiah Cleary.

He took on his trustee role in 1975, having succeeded two prior executrixes/trustees and, in 1980, the estate’s woodlands were conveyed to Thomas Cleary in trust. [ 3 ] The resolution and distribution of Jeremiah Cleary’s land has been ongoing for some time. Jeremiah Cleary died in 1951. His will, which was executed in 1944, directed that his woodlands be sold and proceeds distributed to his children. [ 4 ] As trustee, Thomas Cleary made efforts over the years to try and sort out his grandfather’s chain of title and where the property was specifically located.

Originally, he estimated the parcel size to be about 200 acres, but later clarified that he believed his grandfather had always owned the entire 300 acre parcel. [ 5 ] The 300 acre parcel, located in Eastern Passage, Halifax County, is landlocked. For many years, no one thought it was worth much. That has now changed. Bordering property is now developed, and Thomas Cleary has had discussions about a potential sale, subject to being able to convey good title.

In his capacity as trustee, Thomas Cleary brought an application under the Quieting Titles Act . [ 6 ] Upon seeing the notice of the application in the newspaper, Bryan Naugle set about to solidify the transfer of lands from his uncle, Leon Henneberry. As noted by the trial judge “ . . . Bryan Naugle says that the transfer had been in the works for a while before that and there is no reason to doubt his word on that .” [ 7 ] Bryan Naugle lays claim to ownership of approximately 100 of the 300 acres. The trustee’s claim to the 200 acre balance is unchallenged.

Bryan Naugle relies on his 2013 deed from Leon Henneberry and the prior chain of title which includes a 1936 deed into Leon’s mother (Annie Henneberry). Her title flows back to the Estate of Andrew Cleary. Andrew and Jeremiah Cleary were brothers. [ 8 ] The competing chains of title go back a generation behind the brothers Andrew and Jeremiah to the will of their father, Malachi Cleary, and the wording of his will. The trial judge described it this way: [22] Once again, the claims come down to the wording of a 125 year old will. Malachi Cleary's will provided that he gave his

“northern woodlots” bought from Thomas Young, Jacob Horne and Ferguson to his son Andrew, Jerimiah's [ sic ] brother. If the portion in question is part of the lands that Andrew got from his father Malachi Cleary, the title would follow through to Bryan Naugle.

They would be part of Andrew Cleary's estate. [23] Malachi Cleary also gave to his son Jerimiah [ sic ] Cleary four separate lots, one to the west of the land given to Andrew, the “house lot”; land to the east of the Cole Harbour Road bounded to the north by the land owned by DeYoung; the wood lot he got form [ sic ] Philip Shiers; and another lot to the east of the Cole Harbour Road, extending down to the shore. The land here is not the house lot, the lot east of the Cole Harbour Road, or the lot running down to the shore.

It was argued on behalf of Tom Cleary that the land in dispute here is the land that Malachi Cleary got from Shiers, in 1874. [24] So, a title dispute in 2015 stands to be resolved by determining whether in 1898, when he died, the land was part of Malachi Cleary's northern woodlots that he purchased from Young, Horne and Fergusson [ sic ] or was the land the [ sic ] Malachi Cleary got from Shiers and gave to Jerimiah [ sic ] Cleary. [ 9 ] Prior to Bryan Naugle coming forward, trustee Thomas Cleary was unaware of any competing claims over the lands he sought to quiet title.

Bryan Naugle claimed his chain of title is superior to that claimed by the trustee. [ 10 ] The lands claimed by Bryan Naugle abut the lands of Clayton Developments. As the trial judge astutely pointed out: If he [Brian Naugle] owns that section, Tom Cleary’s property remains landlocked. If Bryan Naugle owns it, he has the land that might be of interest to the developer. [ 11 ] This case was not a credibility contest. Nor did it turn on adverse possession claims. The main issue was who had the better chain of title—Bryan Naugle or the trustee?

The trial judge put it this way: [16] Tom Cleary gave evidence that was both credible and reliable that he believed from the time he was a child that the land involved in this application was the land of his grandfather and before that of his great-grandfather. … Bryan Naugle's evidence was also credible and reliable. But he didn't assert any kind of personal connection to the land. His claim is to legal title to a portion of that land. That title is based on the wording of wills and deeds.

And he says, that if he has formal legal title, the kinds of use made by Tom Cleary over the last 60 years, wouldn't be enough to trump or to oust that title. [17] And he's right. If he has good legal title to the land, Tom Cleary's occasional use of it, even coupled with his fervent belief that it was his grandfather's land wouldn't change that. The issue of course is whether either Bryan Naugle, or Tom Cleary as trustee of his grandfather's estate, has title to the land. [ 12 ] Two expert witnesses provided reports and gave evidence at trial. The 300 acre parcel is comprised of multiple lots.

Notably, only the appellant’s expert (James McIntosh) opined on title and the location of the internal boundaries of the various lots he believed comprised the 300 acre parcel. Mr. McIntosh conducted what appears to be a thorough title search of the competing chains of title. The trustee’s expert (Garry Parker) did not, as that did not appear to be part of his mandate. The primary objective of Mr. Parker’s survey report was to map out the outer or external boundaries of the 300 acre parcel as claimed and described by Thomas Cleary. [ 13 ] Also, the trial judge, over the objection of Mr.

Naugle’s counsel at the time, limited the nature of the direct viva voce evidence to be provided by Mr. McIntosh. The appellant has raised this restriction on appeal. Later, I will have more to say on the limiting of direct expert evidence. [ 14 ] The trial judge found that even if Bryan Naugle had a good chain of paper title—he (the trial judge) was not able to locate his lands on the ground and within the 300 acre parcel the trustee sought to quiet. So the appellant might own lands, but where they might be was undeterminable. That finding was influenced by the trial judge’s use of the expert testimony and his

interpretation of and inferences drawn from documents in the competing chains of title. [ 15 ] For reasons which will later become obvious, it is not necessary to review all key title documents and the

interpretation given or inferences drawn therefrom by the trial judge. However, one document in particular, and the trial judge’s treatment of it, is significant to the outcome of this appeal, that being the inventory of Andrew Cleary’s estate filed with the registry of probate following his death in 1924. [ 16 ] Although the inventory referenced real estate (house and lot and a field lot), it did not specifically mention any woodland. The approximate 100 acres in dispute is understood to be, and have always been, woodland.

The trial judge placed a great deal of weight on the estate inventory and the absence of any express reference to woodland/woodlots therein. Whether he erred in doing so is an issue raised on appeal. I will address how the trial judge used the inventory in more detail under that specific ground of appeal. [ 17 ] Although the trustee’s claim to ownership is not anchored in possessory (adverse) title, there was evidence of limited use and possession that the trial judge took into consideration.

These acts, coupled with his determination that the trustee Thomas Cleary had as good or perhaps a bit better paper title claim to the entire 300 acres, seems to underpin the granting of the certificate of title in favour of the trustee to the entire disputed property. [ 18 ] The Attorney General of Nova Scotia was a required named party to the trustee’s application under the Quieting Titles Act ; however, after declaring no interest in the outcome, she took no position at trial or on appeal. As such, any reference to “the respondent” herein should be read as including only Thomas G. Cleary as trustee.

Fresh Evidence [ 19 ] The appellant also seeks to adduce very limited fresh evidence on appeal, some of which was not fresh evidence but title documents that were already part of the trial record. As is the usual practice of this Court, that motion was heard at the time of the appeal proper, with the decision reserved.

[ 20 ] The fresh evidence, if admitted, would not have impacted the outcome of the appeal. Furthermore, the evidence was available and could have easily been presented at trial. In my view, it does not meet the requirements of admissibility. (See Hatfield v. Mader , 2012 NSCA 66 ) I would dismiss the motion to adduce fresh evidence. Issues [ 21 ] In his factum, the appellant refined his grounds of appeal to three from the seven set out in his (Amended) Notice of Appeal. I would break them down into four and restate them more simply as follows: 1.

Did the trial judge err in giving too much weight to the inventory of the Estate of Andrew Cleary when assessing the strength of the competing chains of title? 2. Did the trial judge err in interpreting or failing to consider certain title documents? 3. Did the trial judge err in his use of the appellant’s expert opinion? 4. Did the trial judge err in limiting the direct evidence of the appellant’s expert? Standard of Review [ 22 ] I will address the applicable review standard under my analysis of the issues.

Analysis Issue 1: Did the trial judge err in giving too much weight to the inventory of the Estate of Andrew Cleary when assessing the strength of the competing chains of title? [ 23 ] From a fair reading of the trial judge’s decision, it is apparent the determination, as to which party had the better paper title to the disputed 100 acres, was a close call. This was acknowledged by counsel for the respondent trustee. In making the call, it is also fair to say that the trial judge placed a great deal of weight on the estate inventory.

He was significantly influenced by the fact it did not contain an express reference to woodland or woodlots. In effect, the trial judge elevated the estate inventory to the status of a document in the chain of title. [ 24 ] There are many references to the estate inventory in the trial judge’s decision. They demonstrate his reliance on this evidence in determining the validity of Bryan Naugle’s title and ownership claim. The following are a few relevant excerpts: [37] Andrew Cleary signed a will in June 1924. His will was located at the registry of probate.

In that will he gives everything to his “dear wife Mary Theresa”. It is from his estate, through his wife Mary Theresa and later his son Thomas W. Cleary, that Annie Henneberry, Leon Henneberry and now Bryan Naugle would trace their ownership. The inventory of Andrew Cleary's estate at the time of his death is signed by two appraisers, Edward DeYoung and Simon Gregoire and by his son and executor Thomas W. Cleary. It establishes that he had personal property at the time of his death being household furniture, a horse, a cow and farming equipment. Each of the items of personal property was assessed value.

His real estate is noted as consisting of a house and lot valued at $75 and a “field lot” valued at $200. [38] It is significant that there is no mention at all of any woodlot or woodlots or wooded land. The land in question is now wooded. In 1889 when Malachi Cleary signed his will, it was apparently a woodlot. There is no evidence that it was ever under cultivation. Everything “on the ground” suggests that it was always wooded land. Bryan Naugle's claim to the land is traced back to the land that Andrew Cleary devised to his wife, under his will.

That estate included no mention at all of any woodland or woodlots. It is reasonable to infer that if the land was wooded in 1889 and there is no evidence of it having been a field within living memory that when Andrew Cleary died, sometime after 1924, the land in question was wooded and not the field lot referenced in the inventory of his estate.

It is also reasonable to infer that if the horse and the cow were each individually accounted for, it is unlikely that Andrew Cleary died possessed of woodlots, which escaped the notice of the appraisers. [39] Yet, in 1936, when Annie Henneberry got land from the estate, the legal description appears to be a recitation of the much older descriptions. It does not reference the current use or condition of the lands. The deed referring [ sic ] woodlots is very difficult to square with the inventory that confirms that at the time of his death Andrew Cleary had no woodlots to leave to anyone.

Once again, it could be argued that there was an error, as indeed there could have been. But, clerical errors are not a particularly firm foundation for a claim to legal title. [. . .] [41] As for the other 100 acres, Bryan Naugle's claim rests on it being the lands of Andrew Cleary. That assertion relies on the acceptance of some title searching inferences that are a stretch beyond reasonable and also require some explanation for the absence of woodlots in Andrew Cleary's estate inventory. [. . .] [53] As between the two legal titles then, neither is much better than the other.

Tom Cleary has the Shiers grant from 1874 into his great grandfather Malachi Cleary. There is uncertainty as to exactly where it is located. Bryan Naugle has the woodlots of Andrew Cleary. Again, the location of those lots is far from clear. While there is nothing to suggest that the lands involved are not the Shiers lot, there is some documentary evidence to suggest that they are not the Andrew Cleary woodlots. The probate records indicate that when Andrew Cleary died in 1924, he had no woodlots. All his estate had to convey to Annie Henneberry

was a house lot and a field. That is a weakness in Bryan Naugle's chain of title unlike any of the weaknesses in Tom Cleary'schain. In that sense, Tom Cleary's legal claim in somewhat stronger. [Emphasis added] [25] Respecting the trial judge’s purported misuse of the estate inventory, the appellant said this in his factum: 58. Finally, there [sic] the issue of the use of the inventory for the Andrew Cleary Estate as an interpretative aid to the land conveyedin deed from the heirs of Andrew Clear [sic] to Annie Henneberry.

The Registry record is clear that Andrew Cleary (and MalachiCleary) received a deed for a lot of land from Farquharson and that Andrew Cleary was willed three wood lots by his father. The 1936deed from the heirs of Andrew Cleary to Anne Henneberry (at 739/215) specifically conveyed the very land described in theFarquharson Deed to Malachi Cleary and Andrew Cleary and the very three wood lots devised to Andrew Cleary. While there may besome uncertainty about where the precise boundaries of these lands are, there is absolutely no ambiguity in these legal descriptions aboutwhat land was being conveyed.

That is, the land that was conveyed was the very land deeded and devised to Andrew Cleary. There wasabsolutely no need to refer to extrinsic evidence, the Estate inventory, to determine what was conveyed to Annie Henneberry. 59. Further, there is no basis in law, title searching practice or in the provisions of the Registry Act to suggest that a conveyance by anEstate deed, which on its face and by the Registry record conveys the very land conveyed to the deceased, should somehow be calledinto question because the Estate inventory did not match up.

While that may raise a probate issue, it does not create a conveyancingissue. Holding otherwise will require title searchers to go beyond the Registry record and search estate inventories to ensure that theproperty is listed there too. There is no reason to require that this be done. The practice has always followed the law that the records atthe Registry of Deeds can be relied upon. Justice Campbell’s decision is incorrect as, if upheld, it means that the records of the Registrycannot be relied upon, even if it is clear and unambiguous. 60.

In the alternative, if the Estate inventory is to be considered, then what is to be made of the inventory describing Andrew Cleary’sland (in addition to his house lot) as a “Field Lot”? Cleary’s position is that the lands in dispute were wood lots and could not bedescribed as fields, so they must have been conveyed away by Andrew Cleary, even though there is no record of this having occurred. This is simply too much of a logical leap, with too much significance being placed on words used by Estate appraisers whose only rolewas to describe and value inventory.

The Estate appraisers could not possibly have expected that so much would be riding on theirdescription of lands, when the land valuation was their more significant task. For that reason, no weight should be given to thedescription. 61. In

summary, it is submitted that it is abundantly clear that Naugle has good paper title to Lots 1B and 3A.

Further, while there issome uncertainty of the placement of Lot 2B and to whether Thomas Young was DeYoung, and may be less than perfect for purposes ofa solicitor’s certified title, in the context of the weighing of title claims of Naugle and the Estate of Jeremiah Cleary, it is clear that theNaugle claim is vastly superior. [26] Noticeably absent from the appellant’s factum is any authority to support his assertion in paragraph 59, which I repeat in partfor convenience, that: . . . there is no basis in law, title searching practice or in the provisions of the Registry Act to suggest that a conveyance by an Estatedeed, which on its face and by the Registry record conveys the very land conveyed to the deceased, should somehow be called intoquestion because the Estate inventory did not match up. … [27] There is authority which supports the appellant’s contention.

I refer to the decision of this Court in Ratto v. Rainbow Realty Ltd.(1985), (NS CA), 68 N.S.R. (2d) 34 (S.C. (A.D.)). This case supports the proposition that estate inventory cannot beelevated to the level of a title or conveyancing document. Inventory can be looked at as a piece of extrinsic evidence, but it is not adocument of conveyance and does not break a chain of title. [28] Ratto dealt with a certificate of title under the Quieting Titles Act. At trial, Nathanson J. (NS CA), [1984]N.S.J. 501) found at paragraph 9: [9] Sandey W.

Anderson, whose correct name appears to have been Alexander Wilbert Anderson, died circa 1940, leaving a willwherein he appointed his son, Frederick Norman, as sole executor and trustee and, after bequests of personal property to his wife anddaughter, he devised and bequeathed the residue of his estate to his son, subject to the condition that his son keep his widow comfortablein the home until her death. That condition was subsequently released by deed.

The estate inventory on file describes the real estateowned at the time of death as a house together with 3 acres of cleared land, 2 acres of pasture and 5 acres of woodland. It is submittedthat there is a break in the chain of title at that point because the inventory does not include the land conveyed by WilliamAnderson and his wife to Sandey Anderson. An inventory is not a document of conveyance; it merely lists the assets which theexecutor believes the deceased owned at the date of death. A will can convey, and this will effectively conveys, all land and interestsin land owned by Sandey W.

Anderson at the time of his death, whether known or unknown to his executor. Consequently, there is nobreak in the chain of title. [Emphasis added] [29] On appeal, this Court affirmed the trial judge’s decision and made the following statements: [31] The trial judge in dismissing the appellants’ submission stated: "An inventory is not a document of conveyance; it merely lists the assets which the executor believed the deceased owned at the date ofdeath. A will can convey, and this will effectively conveys, all land and interests in land owned by Sandey W.

Anderson at the time ofhis death, whether known or unknown to the executor. Consequently there is no break in the chain of title." [32] In Re Estate of Joseph Bruce (1951), (NS CA), 28 M.P.R. 261, the Nova Scotia Supreme Court (in Banco)

considered an appeal from the judge of the Court of Probate where the administratrix filed an inventory of her late husband's estate and later claimed some of the assets set forth in the inventory were her own. [33] Ilsley, C.J., in rendering the judgment of the Court stated at p. 267: "In my opinion an inventory filed by an executor or administrator in this Province under the Probate Act and including assets later claimed by the executor or administrator to be his own is prima facie but not conclusive evidence against the executor or administrator that the assets are those of the estate.

Of course in this case if the statement of the administratrix in her inventory that the bonds and the amount of the joint account were assets of the estate had been acted upon as true by the next of kin or any of them to their prejudice, other considerations might apply. There is no evidence of this and I find that there was no estoppel." [34] It is my opinion an inventory filed by the executor or administrator of an estate is prima facie , but not conclusive, evidence of the value and ownership of the items included. However, the listing or failure to list does not [ sic ]effect the true title.

I would, therefore, dismiss the appellants' submission in this regard. [Emphasis added] [ 30 ] The standard of review for extractable errors of law is correctness and palpable and overriding error for both issues of fact and mixed fact and law without an extractable legal error. (See Housen v. Nikolaisen , 2002 SCC 33 ) [ 31 ] From his decision, it is abundantly clear the trial judge relied very heavily upon the estate inventory when assessing the strength of the competing chains of title.

The trial judge used the estate inventory to undermine the legal description found in the warranty deed to Annie Henneberry (which deed references woodlots) on the basis that Andrew Cleary had no woodlots to dispose of in his estate, because his estate inventory did not expressly list them. This conclusion is reached notwithstanding there was no evidence of Andrew Cleary having conveyed, prior to his death, the woodlots he had earlier received. [ 32 ] I am satisfied that the trial judge’s reasoning path demonstrates he elevated the estate inventory to, in effect, a document in the chain of title.

That was incorrect and an error of law for him to do so. [ 33 ] The trial judge’s repeated reference to the significance of the estate inventory evidence is supportive of the appellant’s claim that his use of it tipped the scales. The trial judge’s incorrect

interpretation and application of the estate inventory undermined the stock he placed on Bryan Naugle’s paper title and the opinion evidence provided by the appellant’s expert respecting the ownership and location of the disputed property. [ 34 ] Had the trial judge not made this error—the determination that the competing paper title was a close tie, or that the trustee’s was slightly better, might have been different. In fact, he might well have determined that Bryan Naugle’s chain of title was superior. Standing alone, this error is material and sufficient to set aside the trial judge’s decision.

Issues 2 and 3:Did the trial judge err in interpreting or failing to consider certain title documents? / Did the trial judge err in his use and understanding of the appellant’s expert opinion? [ 35 ] Although the appellant has raised what appears to be some legitimate concerns with the trial judge’s

interpretation and utilization of other title documents and the expert opinions provided, I need not address these issues. [ 36 ] Because the error identified under the first ground of appeal was serious enough to set aside the decision and order a new trial, I need not delve into the analysis of the second or third grounds of appeal. Given that a new trial is ordered, the less said on the evidence the better.

Issue 4: Did the trial judge err in limiting the direct evidence of the appellant’s expert? [ 37 ] Although my finding on the first ground is determinative of the appeal, this issue presents an opportunity for this Court to clarify what appears to be conflicting lower court decisions respecting limits on the right to call direct expert testimony. [ 38 ] At trial, the appellant sought to adduce direct evidence from his expert Mr. McIntosh, on the substance of his opinion. The appellant interprets Civil Procedure Rule 55.13(2)(

b) as creating an exception to the general prohibition against a party calling their own expert to give direct evidence when the opposing party has required the expert to attend for cross examination. [ 39 ] In short, the appellant argued that once notice has been given of the need for cross-examination, the prohibition on calling an expert witness to give direct evidence is lifted. The respondent argued that once a party has been notified that the expert is required for cross-examination, the retaining party may only present the expert for that purpose. [ 40 ] Civil Procedure Rule 55.13 provides: Testimony by expert 55.13

(2) A party may not call an expert whose qualifications, and the admissibility of whose opinion, are admitted, unless one of the following applies: (

a) the expert is also a fact witness and the direct examination is confined to the facts; (

b) the party is notified, before the finish date, that another party requires the expert to be called for cross-examination; (

c) the presiding judge is satisfied that justice requires that the expert testify.

(3) A party must call an expert whose qualifications are contested, prove the report through the expert, and conduct any supplementary

direct examination on qualifications.

(4) A party must call an expert the admissibility of whose opinion is contested, prove the report through the expert for the purpose of obtaining a ruling on admissibility, and conduct no further direct examination unless the presiding judge permits. [ 41 ] After hearing from both parties, the trial judge held as follows: Well, I’m satisfied here that, based on the rule, the way the rule is written, the expert’s opinion speaks for itself.

It can be subject to cross-examination, but any context or colour that’s to be added to it should come – should be in the report itself, not through viva voce evidence, because the other side needs to know exactly the basis of the opinion. I’m satisfied here that the surveyors can certainly give fact evidence, as Mr. Fownes has indicated, walking the property, that kind of information, but I’m not satisfied here that it would be either in the interests of justice or particularly fair to allow the surveyors to provide additional context to the report.

The report should stand on its own, and if it requires further elaboration, that would have to come by way of cross-examination, not direct examination. So, on that basis, I would find that while the surveyors would certainly be able to give fact evidence, it would not be a matter of allowing them to elaborate on their own opinion. The opinion stands and speaks for itself on the four corners of the document. [ 42 ] The appellant relies on the following obiter comments of Duncan J. in Russell v. Goswell , 2013 NSSC 383 : [12] In my view, the purpose of Rule 55.13(2)(

b) is to make it clear that if notice of intention to cross-examine is provided, then the defendant is no longer subject to a prohibition against calling their own expert witness and conducting a direct examination of that witness. [13] The defendant does not take issue with the plaintiff's submission that notice of an intention to cross-examine Dr. Koshi was given by the Finish Date. Having satisfied that pre-condition the motion is granted. Dr.

Koshi may be called and subject to both direct and cross-examination. [ 43 ] In Russell , Duncan J. was only called upon to determine the right of a party to cross-examine an expert witness. As a result, he did not consider argument with regard to the purpose of the new Rules and the fairness of allowing an unfettered direct, in the absence of a prior opportunity for discovery. The respondent addresses this at paragraphs 45 and 46 of his factum: 45. In Russell v.

Goswell , it is important to note the issue was not whether the Defendant could conduct a direct examination of the expert but whether the Plaintiff could conduct a cross-examination of the expert when the qualifications of the expert had been admitted. The Respondent submits the reference made by the judge to the fact that once cross-examination is requested the prohibition against calling the expert to give evidence – both direct and in cross - is obiter.

He was not asked to comment on the scope of a direct examination for which the expert is subject to and that is the heart of what was put to the Learned Trial Judge in this case. Therefore, the Russell case is not instructive to the issue at hand. 46. Moreover, the Respondent submits that Rule 55.13 is clear and does not permit a party to conduct a direct examination of their expert at trial. The new Civil Procedure Rules have eliminated the discovery examination of experts and were intended to streamline the role played by experts in litigation.

The elimination of the direct examination of experts at trial, save as permitted under Rule 55.13(3) and (4), is in keeping with this process, and also the purpose of the Rules set out in Rule 1.01. [ 44 ] Furthermore, in Grafton Connor Property Incorporated v. Murphy (unreported, Hfx No. 293148) LeBlanc J. came to the opposite conclusion from that indicated in Russell .

LeBlanc J. stated: But on the first question, namely, whether or not there should be permission, whether the Rules permit the Plaintiff to conduct direct examination, I’m of the view that Rule 55 is a departure from the previous practice of permitting direct, cross, and re-direct of an expert witness. The purpose behind the new Rule was to cut down the time spent in trial or discovery, hopefully leading to a more efficient use of trial time. Obviously, the Rule is not absolute because there are some provisions contained within the Rule that permit the Judge to allow for direct examination.

However, I am of the view that, in the main, an expert should be presented by the retaining party for purpose of cross- examination. Looking at the Rule objectively, and the circumstances of this case, it is my view that there is no basis to allow for direct examination. [ 45 ] This rule was also discussed by Rosinski J. in Boyce v. Abousamak, 2014 NSSC 160 , wherein the point was made that Rule 55 in its current form is a significant departure from previous practice on this point.

Rosinski J. stated as follows: [25] When the new Civil Procedure Rules came into force on January 1, 2009, the rules regarding experts were radically redesigned. If the proposed expert opinions contain Rule 55-compliant written reports which were not contested, then, subject to few exceptions, the party presenting the expert evidence may not call that individual as an expert witness (although they may be called as a fact witness), but only provide them for purposes of cross-examination.

Thus, the reports would speak for the expert witness as if they were the witness's direct examination. [ 46 ] In my view, the intended scope and impact of this rule has been correctly reflected in the Boyce and Grafton decisions and is similarly set out by the trial judge. The trial judge needed to correctly interpret Rule 55.13. In my view, he did. I would give no effect to this ground of appeal.

Relief [ 47 ] The appellant’s preferred relief was for this Court to grant him a certificate of title under the Quieting Titles Act for the portion of the 300 acres he claims ownership over. The respondent opposed that relief and argued that, given the nature of the issues involved, the appropriate remedy (if the appeal were allowed) is to order a new trial. [ 48 ] The record before us is not sufficient for this Court to determine the competing claims.

They are best determined by a trial judge. [ 49 ] Also, although the appellant sought a new trial as an alternate remedy, there were certain factual findings made by the trial judge which favoured the appellant and which he does not seek to disturb on appeal. It is not appropriate to constrain a new trial judge hearing the quieting of titles application with findings of fact from the earlier trial. Absent any factual agreements between the parties, the application should be heard afresh.

Conclusion [ 50 ] For the reasons set out herein, I would allow the appeal and order a new trial. [ 51 ] Respecting costs, the respondent advised that a formal settlement offer was made. As a result, the respondent requested to be heard further on costs in the event the appellant were successful. The Court will accept further costs submissions in writing unless the issue is resolved between the parties. If submissions are required, the respondent’s submissions are to be filed by July 15, 2016, and the appellant’s by July 22, 2016. Van den Eynden, J.A. Concurred in: Bourgeois, J.A. Hamilton, J.A.