MacCallum v. MacDonald, 2023 NSCA 24

Nova Scotia Court of Appeal Citation: MacCallum v. MacDonald , 2023 NSCA 24 Date: 20230330 Docket: CA 511255 Registry: Halifax Between: Brian MacCallum Appellant v. Cameron MacDonald and Nancy MacDonald Respondents Judges: Farrar, Van den Eynden and Derrick JJ.A.

Appeal Heard: March 30, 2023, in Halifax, Nova Scotia Written Release March 30, 2023 Held: Appeal dismissed with costs, per reasons for judgment of the Court Counsel: Brian MacCallum, appellant, self-represented Douglas Shatford, K.C. and Parker Byrne, for the respondents By the Court (orally): [ 1 ] The appellant is appealing a September 15, 2021 decision of Justice Jeffrey R. Hunt.

Justice Hunt ordered that the common boundary line between the appellant’s property and the respondents’ property was as surveyed by Zachary Ryan, a Nova Scotia chartered land surveyor employed with Rayworth and Roberts Surveys Ltd. [ 2 ] The appellant raises three issues in his factum. We have reworded them slightly: 1. The judge erred when he identified the civic address for the appellant’s property as 75 Tony Cove Lane when it is 27 Dogwood Drive; 2. The judge erred by agreeing with Mr. Ryan on the location of marker C3; 3. The judge erred by accepting Mr.

Ryan’s evidence and opinion were more in keeping with the written documentation and historic uses of the land as compared to the red line sketch provided by the appellant. [ 3 ] Mr. Ryan was qualified as an expert witness. He provided an affidavit, expert report, background materials, a plan of survey and report sketch. He gave evidence at the trial and was cross-examined at some length by the appellant. [ 4 ] Justice Hunt identified Mr. Ryan’s evidence as critical to the determination of the boundary line (¶33).

After a thorough review of the evidence, including the appellant’s arguments as to the location of the boundary line, Justice Hunt concluded that the exercise followed by Mr. Ryan in coming to his conclusion was reasonable and intelligible. [ 5 ] Justice Hunt noted Mr. MacCallum’s “challenge” to Mr. Ryan was that “he consistently made assumptions that favoured the interests of the MacDonalds” (¶61). Justice Hunt disagreed with Mr. MacCallum. He found that Mr. Ryan understood his obligation to approach his evidence and role in an unbiased manner.

He understood his obligation was to the court and not to the party calling him (¶71). Mr. Ryan was not driven by any improper motive and relied on the best available information (¶99). [ 6 ] The judge found the boundary line between the two properties was set out in the survey filed by Mr.

Ryan on April 1, 2019 and recorded in the Cumberland County Land Registration Office as document 114798599. [ 7 ] The appellant challenges the judge’s determination of the boundary line on the basis of the three issues identified above. [ 8 ] With respect to the first issue relating to the appellant’s address, although the judge erred with respect to the appellant’s civic address, the error is of no consequence to his ultimate determination of the property lines. The correct civic address is contained in the judge’s final order.

[ 9 ] The second issue identified by the appellant relates to location marker C3 which appears on a Sketch Report prepared by Mr. Ryan. C3 is located on the northern corner of the property owned by Margaret S. Murray-Cutcliffe. Mr. Ryan used C3 as a starting point to determine the position of the Cutcliffe lot in relation to the lot of Lisa MacCallum. As he did before the trial judge, Mr. MacCallum argues before us that this marker was out by ten feet. [ 10 ] Justice Hunt set out the argument and the appellant’s challenge to Mr. Ryan’s evidence on this issue in his decision: [63] Mr. MacCallum put to Mr.

Ryan a number of hypotheticals. These included the suggestion that a friendly dispute between some other neighbours (Calder/Gillis) had resulted in a particular boundary marker being moved a number of times. The suggestion of Mr. MacCallum was that the final placement of this marker was 10 feet out, placed as a result only of one of these individuals outliving the other which allowed his preferred placement to stand. Mr.

MacCallum suggested this misplacement resulted in the Ryan Survey being out by 10 feet as it pertained to the area in dispute in this matter. [64] The expert disagreed with the Respondent and explained the reason for his conclusion that the marker and resulting measurements were correct. I have carefully assessed all this evidence and the submission that flowed from it. [ 11 ] The judge found the position adopted by the surveyor was correct in all the circumstances: [95] I have assessed the totality of the evidence on this issue.

I have determined that the position adopted by the surveyor is correct in all the circumstances. He was presented with evidence of use and occupation. These are standard tools used in interpreting signs on the ground as these relate to metes and bounds descriptions. I find the professional judgment he brought to bear was reasonable. [ 12 ] Similarly, with respect to the appellant’s third issue—the red line sketch presented by Mr. MacCallum—the judge considered the appellant’s argument: [100] I have assessed the red line sketch provided by the Respondent.

I have reviewed in some detail the exchanges between the Respondent and Mr. Ryan with respect to the sketch. Mr. MacCallum's position was that his sketch provided a reasonable alternative

interpretation of the relevant deed calls and on the ground features. [ 13 ] After reviewing the arguments, the judge rejected them: [101] I have taken some pains to follow the Respondent’s argument. I believe I understand it but, with respect, I have not accepted it. I was more persuaded by the rationale provided by the surveyor. Specifically, I find his explanation with respect to the critical issue of how the property boundaries come together to be understandable and in keeping with the totality of the evidence. I accept his conclusions and the reasoning pathway employed by him.

I accept his view as to the right of way situation. To be clear, I absolutely reject that any title by virtue of a possessory claim has been established by the Respondent. Nothing here came close to the requirements set out in case law such as Brown v. Bellfontaine , [1999] NSJ No. 291 as affirmed by the Court of Appeal, 2000 NSCA 103 . [ 14 ] The judge’s reasons were amply supported by the evidence presented on the application. [ 15 ] Mr. MacCallum has failed to persuade us that the judge made an error let alone a reviewable error.

Conclusion [ 16 ] We would dismiss the appeal with costs to the respondents in the amount of $4,700.00, inclusive of disbursements. Farrar J.A. Van den Eynden J.A. Derrick J.A.