MacDougall v. Nova Scotia (Attorney General), 2012 NSSC 391

SUPREME COURT OF NOVA SCOTIA Citation: MacDougall v. Nova Scotia (Attorney General), 2012 NSSC 391 Date: 20121107 Docket: Syd. 280422/23274 Registry: Sydney Between: David Louis MacDougall Plaintiff v. The Attorney General of the Province of Nova Scotia, Stan MacIsaac, Verna MacIsaac, Patricia Kunze and Stephen Farrell Defendants Judge: The Honourable Justice Cindy A. Bourgeois Heard: July 13, 2012, in Sydney, Nova Scotia Written Decision: November 7, 2012 Counsel: Sean D.

MacDonald, for the Defendant, Stephen Farrell, and for the Interveners, Samuel and Lorna MacDougall, Ian MacDougall, Lisa Farrell, Leslie MacDonald, Janet MacDougall and H. Joseph Farrell Ralph W. Ripley, for the Defendants, Stan MacIsaac and Verna MacIsaac Vince A.

Gillis, for Blair McDonald, Norma McDonald, Samuel Joseph, Estate of Thomas Hollohan (Anne Hollohan), Arthur Timmons, Claire Timmons, Kevin MacPhee and Dorothy Lynn MacPhee William Gouthro and Theresa Gouthro, self represented Elizabeth Cusack, Q.C., for Abraham “ Nipper ” Libbus Stephen McGrath, for the Attorney General of Nova Scotia By the Court : [ 1 ] This decision addresses a number of procedural issues in relation to a matter brought under the Quieting of Titles Act , R.S.N.S. 1989, c.382 , scheduled to be heard by the Court in late January 2013. [ 2 ] I do not intend to canvass the background of this unique matter, other than a few brief comments, as the historical context has

been fully canvassed by Justice MacAdam in the decision MacDougall v. Nova Scotia (Attorney General), 2008 NSSC 88 . In 1992, David Louis MacDougall commenced an action under the Quieting of Titles Act against the Attorney General of Nova Scotia, Stan and Verna MacIsaac, and Patricia Kunze. The matter proceeded to trial in front of the Honourable Justice W.E. Goodfellow, and after several days, was concluded with the filing of a Consent Order, based upon a settlement reached by the parties.

Although the Court issued the Order, Justice Goodfellow did not render a decision given the settlement reached. [ 3 ] Several years later, a number of land owners came forward asserting that the Quieting of Titles application ought to be re- opened, submitting they had not received proper notice. For the reasons outlined in his decision, MacAdam J. allowed the application of Dr. Farrell.

He wrote at paragraph 62: 62 In the present circumstance the integrity of the litigation process is at risk, since there was a failure to advise the Court that persons affected by the Court's proposed course of conduct had not been given notice, notwithstanding earlier directions of the Court requiring notice to be given. The Application by Dr. Stephen Farrell to reopen the trial and be added as a Defendant is granted. However, it will be up to the presiding Judge to determine what rights, if any, Dr. Farrell may have to use Lil Dan's Lane as a means as of access to his cottage.

Depending on the result, what rights of access, if any, others, including, but not necessarily limited to, the dismissed applicants, will have to use Lil Dan's Lane will also be for the presiding Judge to decide. The effect of re-opening the trial is for the trial judge to determine. [ 4 ] Since rendering the above decision, several other landowners have come forward seeking to become involved in the litigation. They express concern that the MacIsaacs who were granted a Certificate of Title in 1996 to certain lands are preventing the use of a roadway and prohibiting their access to the shore.

THE MOTION [ 5 ] A motion was brought before the Court to determine a number of procedural issues. The Court received written submissions on behalf of a number of parties, and proposed intervenors. The primary issues can be summarized as follows: (

a) What is the proper scope of the re-opened matter? (

b) Who are the parties, and what role, if any, should the proposed intervenors be permitted to take? (

c) What use, if any, should the Court make of the evidence from the proceedings in 1996? (

d) In what form should any “ new ” evidence be given? DETERMINATION (

a) What is the proper scope of the re-opened matter? [ 6 ] The MacIsaacs argue that the scope of the re-opened proceeding should be a narrow one, namely, it should be confined to the usage of Lil Dan ’ s Lane. Some of the other proposed parties and intervenors suggest it should be broader, and specifically include as well, whether there is a prescriptive right to cross the MacIsaac land to gain access to the shore of the Bras d ’ Or lake. [ 7 ] In my view, a broader approach should be favoured. The Quieting of Titles proceeding was re-opened.

Although the usage of Lil Dan ’ s Lane was certainly a focus of Justice MacAdam ’ s decision, I do not view the decision as specifically limiting any subsequent proceedings to that issue. [ 8 ] By re-opening the Quieting of Titles Application, it is proper that any party be entitled to put forward any claim or argument which would have otherwise been available to them pursuant to the legislation.

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b) Who are the parties, and what role, if any, should the proposed intervenors be permitted to take? [ 9 ] Despite the convoluted and unusual procedural background, this is a Quieting of Titles application. As such, the Court looks to the legislation for guidance. Sections 10(1) and (2) are relevant, and state: 10

(1) Any person, who thinks that he may be affected by the claim for the certificate, may be heard on the application for directions and may be permitted to intervene as a defendant at any time, by the court or a judge, but shall not be permitted to contest the claim unless the person is added as a defendant.

(2) The person shall apply to a judge in chambers to be made a defendant after giving two clear days notice of application to the plaintiff, and the judge shall permit the person to intervene as a defendant unless it is clear that the person has no interest that may be affected by the proceedings. [ 10 ] The above provisions, and in particular, their interplay with the provisions contained in the Civil Procedure Rules was considered by Justice Moir in Frank Georges Island Investments v. The Attorney General of Nova Scotia , 2004 NSSC 136 .

There, the Court declined to apply a more restrictive approach to intervention as contained in then Rule 8.01(1), stating at paragraphs 34 and 35: 34 In this light, s. 10(2) is not surprising for using the mandatory "shall" instead of creating a judicial discretion. These words in s. 10(2), "the judge shall permit the person to intervene", contrast with the judicial discretion in Rule 8.01(1), "any person may, with leave of the court, intervene in a proceeding ...". In my assessment, these provisions cannot stand together.

Intervention is "expressly otherwise provided" in s. 10 of the statute and Rule 8.01 is thusly excepted under s. 3(3) of the Quieting of Titles Act. 35 Accordingly, the only question to be answered in determining whether an application for intervention under the Quieting of Titles Act should be allowed or disallowed is whether "it is clear that the person has no interest that may be affected by the proceedings", it being understood that "interest" has the primary sense involving a right, title, claim or legally protected share in something. [ 11 ] I am satisfied based upon the material filed with the Court, most notably the affidavits of various “ interested parties ” that it is proper that they be made parties to the proceeding.

They have an “ interest ” in the property in question as contemplated in

Section 10 of the legislation. This includes the identified intervenors as represented by Mr. MacDonald, Mr. Gillis ’ clients, as well as William and Theresa Gouthro. (

c) What use, if any, should the Court make of the evidence from the proceedings in 1996? [ 12 ] Although the focus of the new hearing will be different than that before the Court in 1996, evidence was given and should be available for whatever use is deemed appropriate. The Court will accordingly direct that a transcript of the earlier testimony be prepared, with copies provided to all parties. Any exhibits entered in 1996 will similarly be considered as exhibits in the upcoming hearing, subject to arguments regarding the weight to be afforded thereto. (

d) In what form should any “ new ” evidence be given? [ 13 ] Clearly, the legislation contemplates the filing of affidavits by those seeking a Certificate of Title, as well as those opposing same, or bringing a counter claim. Further Section 9(5)(

d) provides the Court with discretion to “ determine how any issue of fact is to be tried ” .

[ 14 ] The parties shall put forward their evidence in relation to the issues before the Court by way of affidavit, and will be subject to cross-examination thereon. A number of affidavits have been filed in the proceeding, both at the direction of the Court, as well as by various individuals. The parties are directed to ensure that those affidavits which have already been filed and that they seek to rely upon in relation to the merits, be identified to the Court and the other parties no later than November 30, 2012. Any party wishing to file additional affidavits must do so on or before December 7, 2012. Any reply affidavits are to be filed no later than December 21, 2012. (

e) Miscellaneous matters (

i) Expert evidence [ 15 ] As noted above, any survey evidence admitted as exhibits in 1996 will be considered as evidence in the present matter.

The Court has expressed in the past the view that more current survey information may be helpful. [ 16 ] Should any party seek to rely upon new survey evidence, a plan with accompanying report, or report in the case of non-survey evidence, should be filed no later than December 21, 2012. (ii) Role of the Attorney General [ 17 ] The Attorney General has repeatedly stated that his sole involvement in relation to the matter before the Court is to ensure that the Province maintain its 100 foot right-away, adjacent to the land in question.

Several, if not most, parties have indicated there is no argument in relation to this issue. [ 18 ] For clarity, any party who wishes to dispute the Attorney General ’ s position must clearly do so, providing their evidence for same by way of affidavit, and filed in accordance with the deadline noted above. (iii) Order of presentation at trial [ 19 ] The style of cause which has been carried forward in relation to this matter is misleading.

The named Plaintiff, MacDougall, has not been involved since the matter was re-opened, and the Defendants MacDougall have been placed in the position of defending their Certificate of Title against various claims. [ 20 ] In the circumstances, I direct that it is appropriate for Mr. Libbus, Dr. Farrell and the “ MacDonald ” group, the “ Gillis ” group and then Mr. and Mrs. Gouthro present their evidence in that order. This would be followed by the Attorney General, if required.

Then finally, by the MacIsaacs. (iv) Briefs [ 21 ] Briefs are to be filed by all parties on or before January 7, 2013, with reply briefs, if any, to be filed by January 21, 2013. J.