Schnare v. Schnare, 2023 NSCA 30

Nova Scotia Court of Appeal Citation: Schnare v. Schnare , 2023 NSCA 30 Date: 20230502 Docket: CA 513937 Registry: Halifax Between: David Schnare Appellant v. Scott Schnare, John Cleveland and Gordon Cleveland Respondents Judge: The Honourable Justice Joel Fichaud Appeal Heard: March 31, 2023, in Halifax, Nova Scotia Subject: Declaratory judgments – possessory title to land

Summary: David Schnare applied for a declaration that the Respondents Scott Schnare, John Cleveland and Gordon Cleveland have no title to land known as “Jimmie’s Island” at Deep Cove, Upper Blandford. The interests of both David Schnare and the Respondents had arisen from past possession. Each of David and Scott Schnare was a grantee of a deed, but there was no evidence that their grantors had rooted paper title. There was no title abstract or evidence who, if anyone, held the current paper title.

The judge of the Supreme Court of Nova Scotia held that Scott Schnare had a “potential” claim to title, based on the history of his and his predecessors’ recent possession. Given the absence of an abstract of title, the judge declined to make a more definitive declaration of title. David Schnare appealed on the grounds that (1) the judge should have made a definitive declaration on the issue, instead of referring to a “potential” claim, and (2) the judge erred in the application of the legal principles of adverse possession, constructive possession and colour of right.

Scott Schnare responded to the first ground by submitting that a more effective procedure would be an application under the Quieting Titles Act , R.S.N.S. 1989, c. 382 , as amended. Issues: On the first ground, was an application under the Quieting Titles Act a more effective remedy and, if so, should the judge have declined to entertain the application for a declaration? Result: The Court of Appeal dismissed the appeal but for different reasons than those stated by the judge of the Supreme Court. A declaration is a discretionary remedy.

A court should decline to entertain an application for a declaration where there is a more effective alternative remedy. Here, other parties, not named or notified in this proceeding, had a potential interest in the disputed land. An application under the Quieting Titles Act , with an abstract of title and notice to other potential interest-holders, was a more effective remedy. The judge should have declined to entertain the application for a declaration. 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 12 pages. Nova Scotia Court of Appeal Citation: Schnare v. Schnare , 2023 NSCA 30 Date: 20230502 Docket: CA 513937

Registry: Halifax Between: David Schnare Appellant v. Scott Schnare, John Cleveland and Gordon Cleveland Respondents Judges: Bourgeois, Fichaud and Derrick, JJ.A. Appeal Heard: March 31, 2023, in Halifax, Nova Scotia Held: Appeal dismissed with costs per reasons for judgment of Fichaud J.A.; Bourgeois and Derrick, JJ.A. concurring Counsel: Jonathan Cuming and Michael Curry for the Appellant Brent Silver and Jocelyn Chisholm, articled clerk, for the Respondents Reasons for judgment: [ 1 ] This case involves possessory title to “Jimmie’s Island” at Deep Cove in Upper Blandford.

David Schnare applied in the Supreme Court of Nova Scotia for a declaration that the Respondents Scott Schnare, John Cleveland and Gordon Cleveland have no interest in the property. The judge, Justice Diane Rowe, dismissed the application. David Schnare appeals. Background [ 2 ] The evidence comprised affidavits and statutory declarations of individuals in the community speaking to historical usage, a surveyor’s affidavit, cross-examination of those deponents, maps, photos, an old survey plan and a more recent drawing prepared by a surveyor. [ 3 ] First, a brief history. [ 4 ] It is a fishing community.

Generations ago, Jimmie’s Island was used communally for fishing berths and fish processing. Over time, each family asserted what Justice Rowe called “some level of proprietary interest” in a particular location. Possession became segregated by family.

Justice Rowe’s Decision said: [14] At some indefinite time, though likely many decades ago, each local family accepted that certain other families in the joint community had established a zone of interest in the Shore Land and its use, with each entering into informal or formal attempts to manage access and then create title to the Shore Land remaining, which is at a premium. [ 5 ] The families included the Schnares, Clevelands, Meisners and Seaboyers. [ 6 ] Meanwhile, due to coastal erosion, it is an island no more.

Justice Rowe said: [15] The remnants of the former Jimmie’s island, its lands now shifted by the sea and merged into the coastal area hugging the roadway, are the disputed Shore Land. A portion of the foreshore that is Crown land, from the ordinary mean high water mark to the waters edge, moves ever upward as erosion and rising sea levels chip away at it.

The limits of the respective interests of the parties in the Shore Land are, as a result, difficult to establish, given the evidence before me on the application. [ 7 ] The shore-bound configuration of the former Jimmie’s Island is shown on a plan dated January 15, 2009, prepared by Lester Berrigan, who testified. The plan depicts a slipway. It was used for hauling and launching boats. Scott Schnare claims an interest in the land west of the slipway and does not challenge David Schnare’s interest in land eastward. David says Scott has no interest in any of it.

Justice Rowe described Scott Schnare’s claim as the disputed “Shore Land”. I will use that term. [ 8 ] As Justice Rowe noted and both parties acknowledge, neither David nor Scott Schnare has effective paper title. Each is a grantee on a deed that describes the Shore Land, or part of it. However, there is no evidence that either of their grantors had rooted paper title at the time of those deeds. Their grantors’ interests would appear to derive from possession. [ 9 ] No abstract of title was entered in evidence. It is unclear whether there was an original Crown grant.

A 1971 plan cites a deed from 1908 that mentions a Registry of Deeds book and page. However, the deed is not in evidence and neither party adduced evidence of

a chain of title to the 1908 grantor or from the 1908 grantee. The current paper title is unknown to the court. [ 10 ] I will summarize the theories of David and Scott Schnare. [ 11 ] David Schnare relied on his own affidavits. He says: • He is a fisherman, as was his father Donald W. Schnare. The Respondent Scott Schnare is David’s cousin. • Donald W. Schnare used the Shore Land for his fishing business. He paid municipal taxes on it from the late 1970s. • There is no evidence of a deed to Donald W. Schnare. • On December 20, 2001, Donald W.

Schnare deeded the Shore Land to David Schnare and to David’s brother William Schnare. • Since then, David Schnare has paid the municipal taxes and has performed acts of adverse possession to parts of the Shore Land. • David says the 2001 deed from his father creates a “colour of right” which, under the authorities, gives him constructive possession of the entire Shore Land, even if he did not exercise acts of possession over the disputed part of the Shore Land. That is the proposition behind the lawsuit. • David says any historical acts of possession by Scott Schnare were with Donald W.

Schnare’s consent which would disqualify those acts as “adverse” possession by Scott. [ 12 ] Scott Schnare filed his affidavit and a statutory declaration, an affidavit of Annie White (granddaughter of Miram Cleveland), and statutory declarations of the Respondent John Cleveland and Dalton Meisner. From this evidence, he says: • In the 1940s, Miram Cleveland used the disputed Shore Land for his fishing endeavours. There is no evidence of a deed into Miram. • Miram deeded his interest to his grandsons John and Gordon Cleveland, reserving a life interest to Miram’s son George Cleveland (father of John and Gordon).

Miram died in the late 1940s. • George Cleveland was a fisherman and used the disputed Shore Land for fishing purposes until his death in 1974. • After George died, his sons John and Gordon made little use of the disputed Shore Land property. However, since the 1980s, Scott Schnare used the property for his fishing operation. • Eventually, Scott Schnare asked John and Gordon Cleveland for formal permission to use the disputed Shore Land for Scott’s fishing operation. John and Gordon Cleveland gave permission.

The arrangement was reflected in a 1997 document, entered in evidence, stating that Scott Schnare was to pay $100 as consideration. The amount was paid in kind by delivery of lobster. • Since then, Scott Schnare has used the disputed Shore Land for his fishing business. • On June 10, 2010, John and Gordon Cleveland deeded the disputed Shore Land to Scott Schnare. • On November 14, 2019, John and Gordon Cleveland quit-claimed the disputed Shore Land to Scott Schnare.

This was because of a defect in the 2010 deed’s legal description. • David Schnare has not used the disputed Shore Land over the past 30 years. • From the outset, the Clevelands used the property on their own initiative and not further to any permission from David Schnare or his father Donald. Scott Schnare says the same for his use since the 1980s. The Clevelands and Scott Schnare first learned of David Schnare’s claim after the 2001 deed from Donald W.

Schnare to David and William Schnare. [ 13 ] On November 22, 2019, David Schnare filed a Notice of Application in the Supreme Court of Nova Scotia, naming Scott Schnare, John Cleveland and Gordon Cleveland as Respondents. The Notice sought “an order declaring that neither Scott Schnare, John Cleveland or Gordon Cleveland (collectively referred to as ‘the Respondents’) have ever acquired an interest, by operation of the doctrine of adverse possession or otherwise” in the former Jimmie’s Island.

The application was further to Civil Procedure Rule 38.07(5): 38.07(5) A party making a claim in an action or an application may plead or apply for a declaration of the legal status or right of a person. [ 14 ] David Schnare’s Notice did not request a declaration of his own title status, just that the Respondents have none. As the brief from David Schnare’s counsel to Justice Rowe said: [18] The Applicant is not asking this court to make any findings which might result in him attaining an interest in the Lands.

Rather, what the Applicant is disputing is the claim by Scott Schnare, as identified in paragraph 4 above, wherein he claims title to a portion of the Lands. [ 15 ] In this Court, David Schnare’s counsel explained his client’s strategy: first to eliminate Scott Schnare’s claim with this declaratory application, then deal with other potential interest-holders in a second proceeding under either the Quieting Titles Act , R.S.N.S. 1989, c. 382 , as amended, or the Land Registration Act , S.N.S. 2001, c. 6 , as amended. As there may be other interest-holders,

David Schnare could not assert his own title in this application to which the others are not parties. [ 16 ] Justice Rowe heard the application on March 22, 2021, issued an oral Decision on October 22, 2021 and a written Decision on February 15, 2022 ( 2022 NSSC 32 ).

The judge accepted Scott Schnare’s theory because of better evidence of recent possession: [25] … David Schnare’s evidence alludes to the title from his father to his brother and himself, tax payments, (which are afforded a low evidentiary basis as an indication of property ownership), an attempted sale of the entire parcel, and his occasional use, which is both intermittent and historical with his family when he was a younger person. There was no clear evidence of his own current and ongoing use of the land.

The evidence indicates the intensive use by David Schnare’s family of the Shore Land when the lands were part of the family’s fishing activity is largely in the distant past, with more recreational use and occasional visits being referenced. … [33] There is evidence to support a claim that the Clevelands had assumed an acquired title, based on adverse possession, to the lands that were formerly James’ Island.

This was corroborated by the evidence of John Cleveland, Annie White, and Dalton Meisner, as well as Scott Schnare. [34] I am satisfied that on the evidence before me that Scott Schnare and Gordon Cleveland entered into an informal agreement in 1997. These agreements were later supported by statutory declarations and subsequent deeds.

There is no corresponding evidence that Scott Schnare has abandoned his use of the land, and there is evidence that his open and notorious use is ongoing and intensive as he participates in the local fishery. [35] While Gordon Cleveland was not responsive to the application in the hearing, his brother John Cleveland who is an interested party, and Annie White, both corroborated this account in support of Scott Schnare’s asserted interest in the land.

The respondents submit that their predecessors George Cleveland and Miram Cleveland had continuous occupation since the 1940s, with this aspect of the evidence spoken to by Dalton Meisner. [36] All of the witnesses collectively created as accurate a record as can be put forward on the history and use of the Shore Land, as it was then, at least 50 years ago, and as it is now.

I accept the Respondents’ position that they have demonstrated that this evidence may be sufficient for a Court to find there is a potentially valid claim by the Respondents for possessory title, while mindful that I am not being asked to go further and make such a definite finding of title. [37] Where a person established evidence of paper title, even if that paper title is found to be invalid, paired with actual physical possession of a part of land, used to the exclusion of others, for a period in excess of twenty years, then they may establish a claim in adverse possession to the land as against a rightful owner with valid paper title.

As this Applicant is also relying upon a “colour of title” claim, with use and possession, to the lands, its burden is even higher than it would be upon a person with valid paper title. In this matter, the Applicant’s evidence should demonstrate on a correspondingly high level the strength of their claim to the disputed portion of land that is currently in use, as it is subject to a competing claim of another similarly situated litigant.

In that sense, the evidence provided by the Applicant does not supplant the Respondents’ competing evidentiary basis for a claim. [ 17 ] As to the disposition, Justice Rowe was stymied. Parties other than David and Scott Schnare might have an interest. Those parties had not been joined or even identified. So the most Justice Rowe could do was opine on the “potential” interest of Scott Schnare, similar to a ruling that dismisses a defendant’s motion for

summary judgment. This meant her view would not determine title, which would remain open to a future proceeding under the Quieting Titles Act with the proper parties. Her Decision explained: [3] To begin, both David and Scott Schnare acknowledge that neither has good paper title to the Shore Land. It has never been the subject of a Quieting Titles Act , RSNS 1989 c. 382 proceeding.

The Court was not provided with an abstract of title by either party during the course of the application, although extensive affidavits, oral testimony, photographs and maps were placed in evidence by the parties. [4] I will note that the Respondents did indicate at the close of the evidence during the hearing an intention to ask the Court to make an Order pursuant to the Quieting Titles Act . This intention was later abandoned in the subsequent written closing submissions of counsel for the Respondents filed with the Court.

They now request that, in the event that the Respondents are successful in dismissal of the application, the status quo continue. [5] This application does not seek an Order to clear title to the Shore Land and a declaration to establish title in it to the benefit of David Schnare and his brother.

David Schnare, instead, asks that the Court declare that Scott Schnare does not have any valid interest in a portion of the Shore Land … [22] The Court is being asked effectively to determine whether one of the two parties may assert a stronger claim, at an unknown time in a different proceeding, to a grant of clear paper title. The Crown is not a party to this proceeding, as there is not a proceeding filed pursuant to the Quieting Titles Act .

Both parties admit that they do not hold clear paper title to the Shore Land. … [24] If David Schnare had instead sought to obtain a certificate of title pursuant to the Quieting Titles Act , with Scott Schnare as a party, it is open for David Schnare to seek an order for

summary judgment in relation to Scott Schnare’s claim. The law concerning a motion for

summary judgment resonates in a way with this application, as the Court is essentially being asked to determine whether Scott Schnare’s asserted legal interest has a reasonable chance of success, if it were to be put before the Court squarely in a proceeding. That is not the case in this application, though. … [39] The Applicant has not succeeded in demonstrating to the Court that the Respondents have no potential claim, whether in adverse

possession or actual possession with colour of title, such that it can issue an unequivocal declaration that the Respondents have notacquired any right to date. The scope and nature of the Respondents’ potential interest is indeterminate in this proceeding.

TheRespondents may be able to assert an interest in land, at some future time in another proceeding, to establish clear title. [40] The application is dismissed. [41] A proceeding to determine title, and the scope of such title, as between the parties, and potentially the Crown, as this is ungrantedCrown land, is more appropriate for an Order setting out the property interests asserted by the parties. [18] Justice Rowe’s Order of February 28, 2022 dismissed David Schnare’s application with costs of $7,500 plus disbursementspayable to Scott Schnare. [19] On April 4, 2022, David Schnare appealed.

Issues [20] David Schnare submits the judge erred in law: (1) by likening the application to a motion for

summary judgment and byconsidering only potential interests and (2) on the merits, by not applying the relevant principles of adverse possession and colour ofright. [21] My view on the first point disposes of the appeal, meaning the second point does not arise. Standard of Review [22] The standard of review is well-known. The Court of Appeal reviews issues of law for correctness. From an issue of mixed factand law, an extractable legal point is reviewed for correctness.

Issues of fact or mixed fact and law with no extractable legal issue arereviewed for palpable and overriding error, meaning a clear error that affected the outcome. Analysis [23] David Schnare applied for a declaration. A declaration is a discretionary remedy. In determining whether to entertain theapplication, the court focuses on utility.

The court’s bases for declining to exercise its discretion include the declaration would noteffectively dispose of the issue and there is a more effective alternative remedy: • On the discretion to entertain an application for a declaration, see generally: Lazar Sarna, The Law of Declaratory Judgments (Toronto Thomson Reuters, 2016), 4th ed., pp. 21-56. On the history of the point, see Kourtessis v. Minister of NationalRevenue, (SCC), [1993] 2 S.C.R. 53, pages 85-90, per La Forest J. and pages 113-17, per Sopinka J. • In Solosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821, at page 832, Justice Dickson (as he then was), for theCourt on this issue, said: As Hudson suggests in his article, “Declaratory Judgments in Theoretical Cases: The Reality of the Dispute” (1977) 3 Dal. L.J. 706: The declaratory action is discretionary and the two factors which will influence the court in the exercise of its discretion are the utility ofthe remedy, if granted, and whether, if it is granted, it will settle the questions at issue between the parties. • In Daniels v.

Canada (Indian Affairs and Northern Development), 2016 SCC 12 , [2016] 1 S.C.R. 99, JusticeAbella for the Court said: 11. … A declaration can only be granted if it will have practical utility, that is, if it will settle a “live controversy” between the parties[citations omitted]. • In Ewert v. Canada, 2018 SCC 30 , [2018] 2 S.C.R. 165, Justice Wagner (as he then was) for the majority said: [83] A declaration is a discretionary remedy.

Like other discretionary remedies, declaratory relief should normally be declined wherethere exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question [citation omitted]. • In Nova Scotia (Securities Commission) v. Potter, 2012 NSCA 12, Justice Bryson (paras. 15 and 19) adopted the followingtests, stated by the applications judge in that case, for exercising the discretion to entertain an application for a declaratory judgment: A. Is there a sufficient and/or legal foundation in place to avoid giving a “declaration in the air”? B.

Are there available effectual alternative remedies? C. In all the circumstances, do the interests of justice favour making the declaration on the question in issue? Justice Bryson (para. 19) said the applications judge’s failure to consider the second question, i.e. whether there was an effectualalternative remedy, was an error of law. • To similar effect: Oakland/Indian Point Residents Association v. Seaview properties Ltd., 2010 NSCA 66, paras. 47-49;Allen v.

Royal Canadian Legion, 2007 NSCA 44, paras. 38-39. [24] David Schnare faults the judge for confining her perspective to whether Scott Schnare had a “potential” interest in the disputedShore Land. Citing the Potter factors, he submits the judge should have squarely ruled whether or not Scott had an interest. His factumputs it this way:

[32] It is the respectful submission of the Appellant that the learned application judge erred at law in failing to consider whether the claimed declaratory relief was available, having regard to the three factors identified in Potter , supra . [ 25 ] Scott Schnare counters that the declaratory remedy was inappropriate because an application under the Quieting Titles Act would be more effective. His factum says: [43] Taken altogether it is clear from the provisions of the Quieting of Titles Act [ sic ] listed above that there are effective alternative options the Appellant could have pursued.

It is the respectful submission of the Respondent that this would have been the more appropriate avenue for the applicant to pursue in determining the validity of both parties interests in the Shore Land. [ 26 ] In my view, Scott Schnare’s submission is more persuasive, for the following reasons. [ 27 ] Other parties may have an interest. They have not been joined or notified: • Justice Rowe’s Decision (para. 41) says “this is ungranted Crown land”. She notes (para. 15) erosion has shifted the former island boundary into a foreshore with a potential Crown interest from the high water mark to water’s edge.

A post-hearing letter from Scott Schnare’s counsel to Justice Rowe suggests there was a Crown grant, but there is no evidence on the point. • Mr. Berrigan’s affidavit attaches a Plan of Jimmie’s Island dated February 28, 1971, by A.A. Brine, a surveyor. The Brine plan identifies lands of Ben Meisner, B. Meisner, Henry Meisner, J. Baker, Martin Seaboyer, Cyrus Eaton and Robert Schnare. The Brine plan recites “Deed – Robert Schnare to Martin Seaboyer, Jan. 28, 1908. Recorded at Chester, N.S. June 2, 1908 Book 12 Page 521 No. 361.” The 1908 deed is not in evidence.

So we do not know the metes and bounds of that conveyance. • There is no evidence how the 1908 grantor, Robert Schnare, obtained title.

Neither is there evidence to whom the 1908 grantee, Martin Seaboyer, conveyed his interest. • There is no evidence whether any of the other individuals mentioned in the 1971 Brine plan had paper title to any portion of the Shore Land relevant to this case and, if so, what has happened to it. • There is no evidence whether Miram Cleveland, from whom Scott Schnare derives his claim to title, obtained title by deed or whether he conveyed an interest to anyone else. • The deed of December 20, 2001 from Donald W.

Schnare to David and William Schnare attaches a legal description that identifies the parcel as “the lands of the late Willie Meisner which were bequeathed to him by his father, Ephram Meisner”. There is no evidence how Ephram Meisner obtained title or how title passed from Willie Meisner to Donald W. Schnare. • The affidavit of Mr. Berrigan, the surveyor hired by David Schnare, para. 8 (b), said: “I was unable to determine a chain of title behind the David and William Schnare root of title”. • Neither could Mr. Berrigan identify the boundary.

He testified: In, in this particular case, I felt there was insufficient evidence in the deeds, insufficient monumentation on the ground, that as a surveyor, I, I just didn’t feel that it was my position to make an opinion where the boundary was. … • The post-hearing submission of Scott Schnare’s counsel to Justice Rowe suggests there may have been a lost deed at some point along the way, but there is no evidence on the matter. • There is no evidence whether William Schnare, brother of David, has conveyed his joint interest that he acquired in the 2001 deed from his father Donald. • David Schnare testified he has not migrated the disputed Shore Land under the Land Registration Act .

We have no evidence whether an abutting parcel has been migrated. Sections 44(1), 74(1), 74(2) and 75(1) of the Act may affect possessory title if a portion of the subject parcel or an abutting parcel has been migrated and registered under the Act . [ 28 ] A declaration may resolve a title dispute inter se between the named parties: e.g. Prest Bros. Ltd. v. Myers , 2011 NSSC 175 , paras. 5 , 95-96 and Thompson v. Bauld , 2012 NSSC 72 , paras. 29-30 . [ 29 ] This is not such a case. Other potential interest-holders were in play. [ 30 ] Both David and Scott Schnare make possessory claims.

A “colour of right” is in aid of a possessory claim. A possessory claim is primarily against the holder of paper title, if there is one. Persons who may have paper title should be notified and the court should be informed of their potential interests. [ 31 ] David Schnare did not seek a declaration of his own title, relative to Scott’s interest. He sought an absolute ruling that Scott Schnare had no interest. Justice Rowe concluded that the evidence potentially satisfied the requirements for Scott Schnare’s possessory claim.

Without the participation of the other possible interest-holders, she could go no further. Consequently, her ruling did not resolve the issue. It merely set the stage for a further proceeding, after notice to other potential interest-holders. [ 32 ] The missing keystone was an abstract of title. Justice Rowe had insufficient evidential resources to resolve the issue effectively. [ 33 ] The Quieting Titles Act is meant to address issues of disparate title: Nova Scotia (Attorney General) v. Brill , 2010 NSCA 69 , paras. 36-40 . The process would include a survey and an abstract of title.

Parties with an ostensible interest would receive notice. The judge may order a certificate of title that would appear on the parcel register under the Land Registration Act . [ 34 ] At the appeal hearing, counsel for David Schnare said the process under the Quieting Titles Act would “bog down” the matter.

Yet David Schnare’s strategy envisages a second proceeding to deal with any other interests. In that proceeding, a survey, abstract of title and necessary notices would feature prominently. The safeguards exist for a reason. [ 35 ] The declaration sought by David Schnare would not effectively settle the issue. An order under the Quieting Titles Act would be more effective. The judge should have declined to entertain the application for a declaration.

Conclusion [ 36 ] I would dismiss the appeal and confirm the dismissal of David Schnare’s application for a declaration, though for different reasons than those in the Decision under appeal. I would order the Appellant to pay the Respondents costs of $2,500, all inclusive, for the appeal. Fichaud J.A. Concurred: Bourgeois J.A. Derrick J.A.