MacDonald v. Korol, 2021 NSSC 297

SUPREME COURT OF Nova Scotia Citation: MacDonald v. Korol , 2021 NSSC 297 Date: 20211019 Docket: Syd , No. 466751 Registry: Sydney Between: Odilia MacDonald Plaintiff (Defendant by Counterclaim) v. Sue Korol Defendant (Plaintiff by Counterclaim) Decision on Motion

Summary Judgment on Evidence Civil Procedure Rule 13 Judge: The Honourable Justice Robin Gogan Heard: March 4, 2021, in Sydney, Nova Scotia Final written Submissions: October 15, 2021 Counsel: Robert Pineo, for the Plaintiff David Hutt, for the Defendant By the Court: Introduction [ 1 ] This is a motion for

Summary Judgment on Evidence. It involves a dispute between adjacent landowners, Odilia MacDonald and Sue Korol. MacDonald’s access her property involves crossing over Korol’s property. The ongoing dispute resulted in legal proceedings. MacDonald commenced a claim against Korol. Korol defended and brought this motion. [ 2 ] The outcome of this motion is driven by the provisions of the Land Registration Act, SNS 2001, c. 6 (the “ LRA ”). Korol relies on s. 74 of the LRA to say that any interest MacDonald had is now void. MacDonald disputes Korol’s

interpretation and claims to have an express grant and an overriding interest. [ 3 ] For the reasons that follow, I dismiss the motion. Background and Evidence Review [ 4 ] MacDonald resides at 407 Malcolm’s road in Albert Bridge, Nova Scotia. Her property is identified as PID 15685902. Her neighbour Korol resides at 411 Malcolm’s Road, Albert Bridge, Nova Scotia. Her property is PID number 15632292. MacDonald and Korol are neighbors and adjacent landowners. [ 5 ] MacDonald’s property was previously owned by her father. Her father obtained title from Robert MacDonald in 1968 who

took title from Malcolm Ferguson in 1964. MacDonald took title to the property from her father in February of 2002. [ 6 ] Korol became the adjacent landowner when she purchased her property in July of 2006.

Her property parcel had been migrated to the real property registry on June 30, 2006, without noting any burdens in favour of the MacDonald property. [ 7 ] The MacDonald property parcel was migrated to the real property registry on March 10, 2010, claiming no express right of way or prescriptive easement as a benefit to the parcel. [ 8 ] The properties are both located on the south side of the Mira River and to the east of Albert Bridge. MacDonald and Korol both access their property by way of a private road owned by Pembroke Properties Limited and commonly known as “Malcolm’s Road”.

This private road connects to the Brickyard Road which is a public roadway. [ 9 ] Subsequent to her purchase in 2006, Korol became aware that MacDonald was using two driveways over her property as access and parking areas. At that time, the MacDonald property was being used as a seasonal cottage. In 2009, MacDonald began constructing a permanent residence in place of the cottage and approached Korol to sell the portion of her property containing the two driveways. Korol did not sell the property to MacDonald. [ 10 ] The MacDonald renovation proceeded and included improvements to the two driveways.

Gravel was added as well as a rock wall and a garden area. A

section of driveway was added connecting the existing roads into a loop. Korol says she asked MacDonald to remediate these changes. MacDonald once again offered to buy the disputed area of property in 2016, but Korol declined to sell. [ 11 ] In subsequent years, the property dispute escalated. [ 12 ] A consent injunction was ordered on September 20, 2017. [ 13 ] On November 22, 2017, MacDonald commenced a claim against Korol claiming express grants for two rights of way identified in the deed for her property.

She also claimed that since the 1960’s her family had enjoyed the use of two driveways from Malcolm’s Road that were open, continuous, and notorious. Alternatively, MacDonald claimed the right to these lands by way of prescriptive easement or lost modern grant. MacDonald sought an order confirming her right of way and claiming injunctive relief from Korol’s interference. [ 14 ] Korol defended MacDonald’s claims on January 5, 2018, and amended her defence adding a counterclaim on February 15, 2019. She denied that the express right of way in MacDonald’s deed related to the disputed area of property.

She also disputed the existence of an easement by prescription or lost modern grant. Finally, Korol relied on s. 74(2) of the LRA , and claimed that any prescriptive interest MacDonald had was void. [ 15 ] MacDonald defended the counterclaim on March 15, 2019, maintaining her claim to a right of way or easement and denying any trespass. [ 16 ] Korol now brings this motion for

summary judgment on evidence pursuant to Civil Procedure Rule 13.04. [ 17 ] The evidence on the motion comes from three affidavits. There is a solicitor’s affidavit setting out the historical particulars of the two properties. Each of the parties also filed an affidavit. There was no cross-examination on the affidavits. The parties agree that there are no material issues of fact requiring trial on the point before the Court for determination. [ 18 ] The main action is scheduled to commence trial on November 22, 2021. Issues [ 19 ] Should

summary judgment be granted on the basis that MacDonald’s prescriptive rights are void by operation of s. 74 of the LRA and her claims have no chance of success? Position of the Parties Sue Korol [ 20 ] Koral seeks

summary judgment on this motion. She says that s. 74 of the LRA provides that any interest acquired by adverse possession or prescription before parcel migration is absolutely void against the owner ten years after parcel registration. The Korol property was migrated from the land titles system to the land registry system on June 30 th , 2006. The parcel registry does not note any burdens or interests in favour of the MacDonald property.

Likewise, the MacDonald property was migrated on March 10, 2010, with no burdens or interests noted over the Korol property to the benefit of MacDonald. [ 21 ] Korol submits that MacDonald does not have express grant of right of way over her property. The language in the MacDonald property description does not refer to the driveways in question. This leaves the MacDonald property with only unrecorded prescriptive rights arising from use.

Korol submits that any right MacDonald had over the Korol property was extinguished on June 30, 2016, ten years after the migration of the Korol property by virtue of the operation of s. 74(2) of the LRA . [ 22 ] On this basis, Korol argues that it is appropriate to grant

summary judgment on MacDonald’s claim, leaving only her counterclaim for trial. She also asks that the 2017 injunction order be vacated. Odilia MacDonald

[ 23 ] MacDonald currently makes use of two driveways located on the Korol property to access her property. The evidence is uncontested that these driveways have been used to access the MacDonald property since the 1960s and this use continues (albeit on an expanded basis) to this day. [ 24 ] MacDonald submits that this motion must be dismissed for three reasons: (1) she has a deeded right of way to her property, (2) she has an easement or right of way being used and enjoyed and therefore an overriding interest under s. 73(1) (

e) of the LRA , and (3) ss. 74 and 75 of the LRA operate to allow her to obtain an easement. [ 25 ] MacDonald does not claim any right by way of adverse possession. She is the view that she has a right of access that continues to be used and enjoyed and that s. 73 of the LRA disposes of this motion. However, if s. 74 is found to apply, MacDonald argues for an

interpretation whereby the entirety of s. 74 is subject to the exception in s. 75. MacDonald is of the view that her rights are covered by the exception in s. 75 and that there is a material question of disputed fact over whether her prescriptive claims are in fact to a portion of the property not exceeding twenty percent. [ 26 ] Subsequent to the parties written submissions, the Nova Scotia Court of Appeal released its decision in Grant v. Halifax Regional Water Commission , 2021 NSCA 22 . Each of the parties provided a submission on the relevant portions of that case during the hearing of the motion.

The Court further invited submissions on the decisions of Norton, J. in Urban Farm Museum Society of Spryfield v. Auby , 2021 NSSC 136 and Murray, J. in Charles and Abbott v. Xu and Chen , 2021 NSSC 295 . Analysis

Summary Judgment – Civil Procedure Rule 13.04 [ 27 ] This motion is brought under Civil Procedure Ru le 13.04 which provides: 13.04(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action: (

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

(5) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(6) A judge who hears a motion for

summary judgment on evidence has discretion to do either of the following: (

a) determine a question of law, if there is no genuine issue of material fact for trial; (

b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentation of expert evidence, or collection of other evidence. [ 28 ] Motions for

summary judgment have been the subject of frequent consideration. It is said that the applicable principles are no longer controversial. Oft cited is the decision in Burton Canada Company v. Coady, 2013 NSCA 95 . More recently, in Shannex Inc. v. Dora Construction Ltd. , 2016 NSCA 89 at para. 34 , Fichaud, J.A. posed a series of questions as a guide to any motion of this kind: • First Question : Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law? [ Rules 13.04(1), (2) and (4)] If Yes, it should not be determined by

summary judgment . It should either be considered for conversion to an application under Rules 13.08(1)(

b) and 6 as discussed below [paras. 37-42], or go to trial. The analysis of this question follows Burton ’s first step. A “material fact” is one that would affect the result. A dispute about an incidental fact - i.e. one that would not affect the outcome - will not derail a

summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz , 2011 NSCA 74 , para. 27 , adopted by Burton , para. 41, and see also para. 87 (#8). The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on all the evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of a genuine issue of material fact, then the onus bites and the judge answers the first question Yes. [ Rules 13.04(4) and (5)] Burton , paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn the

motion for

summary judgment.

Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. Theamended Rule 13.04(6)(

b) allows the judge to balance these factors. • Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law,either pure, or mixed with a question of fact? If the answers to #1 and #2 are both No,

summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim withno genuine issue of any kind – whether material fact, law, or mixed fact and law. • Third Question: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge“may” grant or deny

summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test: “Does thechallenged pleading have a real chance of success?” Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a

summaryjudgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial orapplication hearing, would be a patently unjust exercise of discretion. It is for the responding party to show a real chance of success. If the answer is No, then

summary judgment issues to dismiss the ill-fatedpleading. • Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then,under Rule 13.04(6)(a): Should the judge exercise the “discretion” to finally determine the issue of law? If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for

summary judgment, and (2) the matter with a“real chance of success” goes onward either to a converted application under Rules 13.08(1)(

b) and 6, as discussed below [paras. 37-42],or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then the judge’sconclusion generates issue estoppel, subject to any appeal. This is not the case to catalogue the principles that will govern the judge’s discretion under Rule 13.04(6)(a). Those principles willdevelop over time. Proportionality criteria, such as those discussed in Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, willplay a role. A party who wishes the judge to exercise discretion under Rule 13.04(6)(

a) should state that request, with notice to the other party. Thejudge who, on his or her own motion, intends to exercise the discretion under Rule 13.04(6)(

a) should notify the parties that the point isunder consideration. Then, after the hearing, the judge’s decision should state whether and why the discretion was exercised. The reasonsfor this process are obvious: (1) fairness requires that both parties know the ground rules and whether the ruling will generate issueestoppel; (2) the judge’s standard differs between

summary mode (“real chance of success”) and full-merits mode; (3) the judge’s choicemay affect the standard of review on appeal. (Emphasis added) [29] After reviewing the foregoing approach, the reasons in Shannex underscore the importance of the parties putting their bestfoot forward on these motions: 36. … Under the amended Rule, as with the former Rule, the judge’s assessment of issues of fact or mixed fact and law depends onevidence, not just pleaded allegations or speculation from the counsel table.

Each party is expected to “put his best foot forward” withevidence and legal submissions on all these questions, including the “genuine issue of material fact”, issues of law, and “real chance ofsuccess”: Rules 13.04(4) and (5); Burton, para. 87. [29] Our Court of Appeal has further considered the required analysis in Halifax Regional Municipality v. Annapolis Group Inc.,2021 NSCA 3, Tri-County Regional School Board v. 3021386 Nova Scotia Limited, 2021 NSCA 4, , and Weaver v. Bryson, 2021NSCA 14.

These three cases were focused mainly on the determination of whether there were genuine issues of material fact disclosedon the motion for

summary judgment. The Land Registration Act [30] The present motion seeks relief on the basis that s. 74 of the LRA operates to extinguish MacDonald’s prescriptive rights. It isa narrow point. The relevant sections of the LRA are reproduced here: Purpose of Act 2 The purpose of this Act is to (

a) provide certainty in ownership of interests in land; (

b) simplify proof of ownership of interests in land; (

c) facilitate the economic and efficient execution of transactions affecting interests in land; and (

d) provide compensation for persons who sustain loss in accordance with this Act. …

Registered interests 20 A parcel register is a complete statement of all interests affecting the parcel, as are required to be shown in the qualified lawyer’s opinion of title pursuant to

Section 37, subject to any subsequent qualifications, revisions of registrations, recordings or cancellation of recordings in accordance with this Act. … Recording of Interest 47(4) Any person who has an overriding interest in a parcel may record that interest. … Priority of certain interests 73

(1) Notwithstanding anything contained in this Act, the following interests, whether or not recorded or registered, and no other interests, shall be enforced with priority over all other interests according to law: … (

e) an easement or right of way that is being used and enjoyed; … Adverse possession and prescription 74

(1) Except as provided by

Section 75 , no person may obtain an interest in any parcel registered pursuant to this Act by adverse possession or prescription unless the required period of adverse possession or prescription was completed before the parcel was first registered.

(2) Any interest in a parcel acquired by adverse possession or prescription before the date the parcel is first registered pursuant to this Act is absolutely void against the registered owner of the parcel in which the interest is claimed ten years after the parcel is first registered pursuant to this Act, unless (

a) an order of the court confirming the interest; (

b) a certificate of lis pendens certifying that an action has been commenced to confirm the interest; (

c) an affidavit confirming that the interest has been claimed pursuant to

Section 37 of the Crown Lands Act; or (

d) the agreement of the registered owner confirming the interest, has been registered or recorded before that time. … Limit on land acquired 75

(1) The owner of an adjacent parcel may acquire an interest in part of a parcel by adverse possession or prescription after the parcel is first registered pursuant to this Act, if that part does not exceed twenty per cent of the area of the parcel in which the interest is acquired. (1A) An owner of an undivided interest in a parcel may acquire the whole interest in the parcel by adverse possession or prescription after the parcel is first registered pursuant to this Act.

(2) For the purpose of this Section, adverse possession and prescription include time both before and after the coming into force of this Act. [ 31 ] I note that there are also references to exemptions for overriding interests in s. 4(3) and s. 86(1). [ 32 ] The purpose of the LRA and the general intent of the act has been considered. See Nova Scotia (Attorney General) v. Brill , 2010 NSCA 69 and MacIsaac v. Royal Bank of Canada , 2015 NSCA 12 . [ 33 ] The purpose if the LRA is set out expressly in s. 2 and must be considered in context.

The LRA represented a dramatic change in the system for recording land title. In her 2003 paper “ Adverse Possession and Prescriptive Rights, Old Doctrines in a New Environment ,” Catherine Walker, Q.C. referenced the purpose and the policy choices behind the provisions of the LRA at pp. 27 -28: As noted earlier, the principles which accord priority to possession are inconsistent with principles of certainty in a land titles system.

The options for legislators in the development of the legislation included repealing adverse possession and prescriptive rights, maintaining the existing law with regard to these interests, or in some way preserving the established “matured” interests while prohibiting their future development. In choosing the latter, part of the consideration was the recognition that in Nova Scotia these interests have long been considered to be part of the land fabric. …

[ 34 ] The intended operation of the new LRA was discussed starting at p. 31: The Land Registration Act departs from the traditional land titles systems in its treatment of these kinds of interests, and its title is one indication of that departure. (See Appendix “A”). Briefly stated, matured possessory interests qualify for registration under the Land Registration Act without any requirement for a prior judicial review. The registration of a possessory interest will not trigger any special or qualified guarantee.

With some exceptions which will be discussed, possessory interests that are not matured at the time of registration stops the clock from running. The Act precludes new possessory interests from arising after registration.

The Act allows as well for registration of mature prescriptive rights, and preserves as overriding interests easements or rights of way “being used and enjoyed”. [ 35 ] And at p. 35 explained ss. 74 and 75 of the LRA : S. 74 – Adverse Possession and Prescription Rights This provision prohibits anyone from obtaining an interest (subject to s. 75 ) unless that interest matured prior to the registration of a parcel under the Act (s. 74(1)). Those possessory interests which are not matured at the time a parcel is first registered are no longer able to ripen into a mature interest.

Time stops running against an adverse possessor at the time a paper title holder registers a parcel under the Land Registration Act . If a paper title holder has registered a parcel without acknowledgment of the possessory interest, a claimant will have ten years from the time of registration to secure a court order confirming their interest (s. 74(2)(a)). After that time has expired, the Act provides that the adverse possessors interest is “absolutely void: against the registered owner. The exceptions to this are set out in s. 74(2). … S. 75 – The Wandering Boundary This

section is an exception to the prohibition of adverse possession set out in s. 74(1). It provides that an adjoining land owner may still accrue and claim adverse possession notwithstanding registration provided the claim does not exceed twenty percent of the area of the parcel against which the claim is made (s. 75(1)). … [ 36 ] The various policy choices embedded in the LRA represent efforts to strike the balance between the desire to preserve valid legal interests in the form of prescriptive rights while at the same time achieving the legislative objectives of security, reliability and certainty of titles in land under the new registry system. Determination of

Summary Judgment Motion [ 37 ] I turn now to a determination of the motion employing the sequential analysis from Shannex : Does the challenged pleading disclose a “genuine issue of material fact”, either pure of mixed with a question of law? [ 38 ] The answer to this first question is no. The parties to this motion agree that there is no material dispute of fact requiring a trial on the point raised by this motion. The motion is framed as a question of whether s. 74 of the LRA operates to extinguish any prescriptive interest acquired by MacDonald.

There is no contest over the fact that any prescriptive interest MacDonald had in the Korol property had fully matured prior to the Korol parcel registration in June 2006, and the subsequent MacDonald parcel registry in March of 2010. There is also no contest over the fact that any such interest was not recorded. [ 39 ] Before turning to the next step in the analysis, I note here that there is a dispute about whether MacDonald has an express grant of right of way. I was not asked to determine this issue given the framing of the motion.

The question as to whether the language of the MacDonald deed contains an express grant of access over the Korol property remains to be determined. [ 40 ] Additionally, I was not asked to determine whether MacDonald’s interest is an overriding interest under s. 73(1) (e). There is no dispute in the evidence on this motion that MacDonald has been using the driveway over the Korol property to access her property and that her use has expanded in scope over the last decade. But I limit my findings to the issue moved before me. I do however consider the scope of s. 73(1) (

e) in my analysis of the operation of s. 74 . Does the challenged pleading require the determination of a question of law, either pure or mixed with a question of fact? [ 41 ] Moving now to the second question, the answer to this question is yes. This motion raises the scope of the operation of s. 74 of the LRA and its relationship to ss. 73 and 75 . I would say in the circumstances of this case that the challenged pleading requires the determination of a question that is mixed fact and law. If the answers to #1 and #2 are NO and Yes respectively, leaving only the issue of law, then the judge “may” grant or deny

summary judgment – the question is “does the challenged pleading have a real chance of success”. [ 42 ] I move to consider whether the challenged pleading has a real chance of success.

[ 43 ] In Halifax Regional Municipality v. Annapolis Group Inc , Farrar, J.A. considered the exercise of discretion in Rule 13, confirming that

summary judgment should follow where there is but one outcome based on the law and uncontested facts. In the present case, the parties agree that there is a dispute as to the relationship between ss. 73 , 74 and 75 of the LRA . They have asked that this question be determined and applied to the undisputed facts. [ 44 ] To confirm, the facts are that MacDonald had a mature prescriptive interest in the Korol property at the time it was migrated on June 30, 2006. Korol’s parcel registry did not record this interest in its parcel registration.

MacDonald continued to use and enjoy the right of way over Korol’s property after the Korol property migration. This use and enjoyment continues to the present day and is preserved by way of a consent injunction. MacDonald migrated her property in 2010 and did not record any interest or benefit in her parcel register. [ 45 ] The interplay between ss. 74 and 75 has been the subject of some consideration. In Myers v.

Bradstock , 2011 NSSC 342 , McDougall, J. found that the applicants had established a prescriptive right of way over the respondent’s property that had matured prior to the respondent’s parcel registration in January of 2006. The respondents interfered with the use of the right of way and the applicants applied for injunctive relief. Section 74(2) was considered but the applicants’ interest was confirmed by order before the expiration of the ten year period and therefore not extinguished. [ 46 ] By contrast, in Miller v.

Hartlen , 2014 NSSC 296 , Duncan, J. dealt with a claim for a right of way finding that an easement by prescription was acquired in September of 2012 after the respondents’ property was migrated under the LRA in 2010. Justice Duncan reasoned that s. 74(1) barred the creation of an easement in the circumstances unless the applicants fit within the exception created by s. 75(1). He found that the easement fit within the exception in s. 75(1) as it was acquired after migration but was less than 20 percent of the respondents’ land. [ 47 ] In Podgorski v.

Cook , 2013 NSCA 47 , the Court of Appeal considered s. 74 in the context of a claim for adverse possession. In its reasons, it was noted: 50. In Nova Scotia, no one can obtain adverse possession against lands registered under the Land Registration Act unless the necessary period of possession concluded prior to registration ( Land Registration Act ., s. 74(1)). There is an exception for claims of less than 20% of an owners land by an abutter. [ 48 ] Sections 74 and 75 of the LRA , as well as Podgorski were further considered in National Gypsum (Canada) Ltd. v. Veinot, 2019 NSSC 326 .

In that case, the applicant had migrated its property and the respondents claimed in adverse possession after the ten year period expired under s. 74(2) . Justice Smith adopted the applicants submission on the

interpretation of s.74 at para 50: From the time the property was migrated in March 2005, the Respondents (or anyone else) had 10 years to bring a claim for adverse possession. The Act’s language makes it clear that this is an absolute limitation period. … It is difficult to imagine clearer or stronger language with respect to the extinguishment of a claim for adverse possession or prescription.

Such claims are “absolutely void” after 10 years (subject to s. 74(2) and s. 75). … An adverse possessor who does not actively take steps to assert and confirm his or her interest can see their claim barred by this limitation period. That is the purpose of s. 74 . It is in keeping with the ultimate purpose of the Land Registration Act , which is to provide certainty. (edited for relevancy) [ 49 ] The operation of these sections of the LRA was referenced in Armour Developments Ltd. v. Manga Hotels (Halifax) Inc ., 2016 NSSC 274 . That case involved a dispute between neighbouring landowners.

One of the properties was migrated in July of 2006, without recording any burden on its land by easement. The neighbouring property was migrated in April 2007, showing the benefit of an easement. Lynch, J. found that a prescriptive easement had been established beginning in 1986, continuing openly as required for more than twenty years and further found that the right of way was less than twenty percent of the adjacent parcel and therefore applied the exception in s. 75(1). There was no reference to s. 73(1) (

e) of the LRA . An appeal on the basis of insufficient evidence to support the findings reached was dismissed (see Magna Hotels (Halifax) v. Armour Developments Ltd. , 2017 NSCA 77 ). The

interpretation of the various sections of the LRA was not further considered. [ 50 ] A similar outcome was reached in Charles and Abbott v. Xu and Chen , 2021 NSSC 295 . In that case, a dispute arose over the use of a driveway between adjacent properties and the applicants sought relief. The respondents denied the existence of an easement saying that their property parcel had been registered in July of 2005 without noting any burdens and that ss. 73 to 75 of the LRA barred the easement claim after ten years.

Murray J. found that the applicants had established a prescriptive easement over the respondents’ adjacent property. Dealing with the non-compliance with s. 74(2) , he reasoned: [132] On its face, this

section appears to be a complete bar to the remedy the Applicants seek. Indeed, there is support in the caselaw for such an

interpretation. In National Gypsum Co., v. Veinot, 2019 NSSC 326 , Justice Ann Smith said of s. 74(2) in the circumstances of that case that: 147. The ten year limitation on adverse possession claims stipulated in s. 74 of the LRA is an absolute bar to adverse possession claims, subject to s. 75 of the LRA .

[133] While there are often similarities, the circumstances of each case are determined by the individual facts of that case. Secondly, there are other provisions of the Act that need to be considered.

The Applicants, for example, have referred to numerous provisions of the Act which they submit provide this Court with the necessary authority, discretion and power to ultimately determine whether the right claimed by the Applicants should be recognized in law. … [137] As indicated, there are other relevant provisions to be considered with the purpose of the Act in mind. [138] Section 75(1) reads: 75(1) The owner of an adjacent parcel may acquire an interest in part of a parcel by adverse possession or prescription after the parcel is first registered pursuant to this Act if that part does not exceed twenty percent of the area of the parcel in which the interest is acquired. [138] The evidence before me is fairly strong that the amount of land involved would not exceed 20% of the area of the parcel at 1614- 1616 Preston Street. [140] Accordingly, as was the case in Armour, I am satisfied that the easement claimed falls within the limit of land the owner of an adjacent parcel (in this case the Applicants), may acquire “after the parcel at 1614-1616 (owned by the Respondents) was first registered” and therefore is exempted from the provision in s. 74(2) of the Act by virtue of s. 75(1) of the Act . … [142] In applying these provisions, I am also mindful of the wording and intent clearly expressed in s. 73(1) .

It is worth repeating that the provision starts with “Notwithstanding anything contained in this Act”, certain interests “shall be enforced with priority to all other interests”. [143] It is clear the intent of the Act is to give priority to the interests such as that being claimed by Mr. Charles and Ms. Abbott, “whether or not” it was recorded or registered. [ 51 ] Ultimately, Justice Murray found that the claimed easement fell within the exception created by s. 75(1) and there was no conclusion on the basis of an overriding interest. [ 52 ] Two recent cases provide further consideration. In Grant v.

Halifax Regional Water Commission , 2021 NSCA, the applicant sought relief from the existence of a claimed easement over a storm water pipe running the length of her property. The existence of the pipe impeded the development of the lot. The applicant’s property had been migrated on May 30 th , 2009 without any title or interest encumbrances recorded against it. She brought the application in January of 2019 seeking damages for trespass. In April of 2019, the respondent filed a claim for declaration of a prescriptive easement and a Certificate of Lis Pendens under the LRA .

It claimed that it had more than twenty years of open and continuous use prior to the 2009 migration and an easement that was being used and enjoyed under s. 73(1) of the LRA . [ 53 ] The application judge found that the respondent had not established the twenty year period required to found a prescriptive easement prior to the 2019 migration as required by s. 74(1). However, he granted a prescriptive easement under ss. 74(2) and 75 finding that the respondent had filed the lis pendens within the ten year period under s. 74(2) and that it met the requirements of s. 75 .

The applicant appealed and the appeal was allowed. [ 54 ] The focus of the appeal was on the issue of agency. However, the Court of Appeal endorsed a portion of the reasons below at para. 52: [52] With respect to the interaction between ss. 74(2) and 75(1), the Application Judge reasoned: [31] Given my finding that a prescriptive easement under s. 74(1) of the LRA is not made out, I am of the view that a prescriptive easement should be granted under ss. 74(2) and 75 of the LRA instead.

In this regard, the LRA allows owners of an adjacent parcel of land to claim an easement by prescription of the land of their neighbours. The term “owner” in the LRA includes agents of the owner … [53] Up to this point, the Application Judge was correct in the

interpretation of s. 75(1) of the LRA . The

section allows the owner of an adjacent parcel to acquire an interest in a parcel by prescription, after it is registered, and the adjacent owner can do so through an agent. [ 55 ] The facts in Grant are distinguishable in that there was compliance with s. 74(2) . There was no specific consideration on the basis of an overriding interest under s. 73(1) (e). In the present case, MacDonald did not take any steps under s. 74(2) as required to preserve any mature prescriptive rights. However, she now raises s. 73(1) (

e) as a route to preservation. [ 56 ] In Urban Farm , a dispute arose between adjacent landowners over an area of encroachment. The respondents’ property was migrated on July 22, 2005, and the applicants on October 11, 2016. Claims for adverse possession and prescriptive easements were denied. In so finding, Norton, J. commented that s. 75 operated as an exception to the ten year limitation period imposed under s. 74(2) . However, in the end, given the date of migration, these provisions did not drive the outcome.

There was no consideration of any form of overriding interest. [ 57 ] On the issue of overriding interests recognized in s. 73 of the LRA , MacDonald points to the reasons in Penny v. Langille , 2018 NSCA 43 , Brill , and Innes v. Childs , 2019 NSSC 73 , all in support of the contention that s. 73(1) (

e) operates as a “super priority” as set out in Penny at para. 28 :

28 The respondents say that a right of way that is in use has a “super priority” and should be enforced by the Court without resort to s. 35(6) of the Act. Certainly, as the judge recognized, s. 73 is an exception to the mirror and curtain principles contemplated by the Act, described in Brill and cited by the judge (para. 36). That exceptional character appears in the opening words of s. 73(1) and is acknowledged in Brill (para. 162 ). Although overriding interests are effective without recording, the holder of such interests may record them (s. 47(4)).

Obviously, this would better reflect the Act’s mirror principle. [ 58 ] What guidance can be extracted from the foregoing review? First, the overriding interests in s. 73 have an exceptional character and are effective without recording. In this case, it is not contested that MacDonald continues to use and enjoy access to her property by way of a passage over a portion of the Korol property. The question remains as to whether this use and enjoyment is extinguished by operation of ss. 74 of the LRA . This specific point has had only tangential consideration. [ 59 ] The

interpretation of these sections must be informed by the principles of statutory

interpretation. An exercise in the

interpretation of legislation must be in consistent with the

Interpretation Act , R.S.N.S. 1989, c. 235 which provides:

Interpretation of words and generally 9

(1) The law shall be considered as always speaking and, whenever any matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to each enactment, and every part thereof, according to its spirit, true intent, and meaning. …

(3) In an enactment, “shall” is imperative and “may” is permissive. …

(5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters, (

a) the occasion and necessity for the enactment; (

b) the circumstances existing at the time it was passed; (

c) the mischief to be remedied; (

d) the object to be attained; (

e) the former law, including other enactments upon the same or similar subjects; (

f) the consequences of a particular

interpretation; and (

g) the history of legislation on the subject. [ 60 ] In addition to the

Interpretation Act , exercises of this kind require reference to the modern rule of statutory

interpretation, as described in Sullivan on the Construction of Statutes (5 th ed., 2008) at p. 1: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [ 61 ] The overall purpose of the LRA has been well considered (see for example paras 24-27 of MacIssac incorporating para. 69 of Brill ). Among the express and oft cited goals of the LRA are certainly of title, simplification of ownership and efficiency of transactions.

The specific purpose of ss. 73 - 75 and the relationship between the sections must be considered in the context of these goals and objectives. [ 62 ] The provisions under consideration were part of the balance struck with the introduction of the LRA . The new system sought to employ the mirror and curtain principles but with some ongoing recognition of the common law rules relating to real property.

On this point, s. 73 maintained an exhaustive list of overriding interests for preservation (“whether or not recorded or registered”), while ss. 74 and 75 provided for limitations on rights acquired by adverse possession and prescription. In my view, the foregoing presents a clear distinction – some interests were to be maintained ( s. 73 ) and some gradually extinguished ( ss. 74 and 75 ). In my view, this distinction informs the

interpretation of the sections. [ 63 ] At this point in the analysis, I am guided by the fundamental direction from our Court of Appeal on motions of this kind. Beginning at. para. 22 of Burton , Saunders, J.A. commented: [22] In my respectful opinion this process has become needlessly complicated and cumbersome.

Summary judgment should be just that.

Summary. “Summary” is intended to mean quick and effective and less costly and time consuming than a trial. The purpose of

summary judgment is to put an end to claims or defences that have no real prospect of success. Such cases are seen by an experienced judge as being doomed to fail. These matters are weeded out to free the system for other cases that deserve to be heard on their merits. That is the objective. Lawyers and judges should apply the Rules to ensure that such an outcome is achieved.

[ 64 ] Further, in assessing the prospect of success, I consider the direction in Burton on this point: [42] … the judge’s task is to determine whether the responding party has demonstrated on evidence (from whatever source) whether its claim (or defence) has a real chance of success. This assessment, in the second stage, will necessarily involve a consideration of the merits of both parties’ positions … the judge is required to take a careful look at the whole of the evidence and answer the question: has the responding party shown, on the undisputed facts, that its claim or defence has a real chance of success? [43] In the context of

summary judgment motions, the words “real chance” do not mean proof to a civil standard. That is the burden to be met when the case is ultimately tried on its merits. If that were to be the approach on a

summary judgment motion, one would never need a trial. [44] The phrase “real chance” should be given its ordinary meaning – that is, a chance, a possibility that is reasonable in the sense that it is an arguable and realistic position that finds support on the record. In other words, it is a prospect that is rooted in evidence, and not based on hunch, hope of speculation. A claim or defence with a “real chance of success” is the kind of prospect that if the judge were to ask himself/herself the question: Is there a reasonable prospect for success on the undisputed facts?

The answer would be yes. [ 65 ] Having considered the direction on this point and the undisputed facts, my answer to question three is yes. It is evident to me based upon the state of the law and the undisputed facts that MacDonald’s claim has a reasonable prospect of success, especially that portion of the claim relying on the existence of an overriding interest pursuant to s. 73(1) (e). In my view, it would be unjust to dismiss it summarily.

Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then, under Rule 13.04(6)(a): Should the judge exercise the “discretion” to finally determine the issue of law. [ 66 ] My answer to the fourth question is No. [ 67 ] The applicant on the motion asked repeatedly for a determination of the question of law - Does the operation of s. 74 of the LRA void any interest held by MacDonald over the Korol property?

In the end, I decline to exercise my discretion to settle the question of law and on this basis I dismiss the motion. [ 68 ] In coming to this conclusion, I consider that I am being asked to decide a narrow question of law that impacts a claim which I find has a real chance of success. While a narrow

interpretation s. 74(1) and (2) or of the interaction between ss. 74 and 75 of the LRA may act as an absolute bar to claims of adverse possession or prescription ten years after registration, there is limited consideration of the impact of a related claim made under s. 73(1)(e). The language in s. 73(1)(

e) of an “easement or right of way that is being used and enjoyed” is significant but received little focus on this motion. It was advanced only as a basis on which MacDonald argued that she enjoyed a real chance of success. It was not the object of a submission as to its

interpretation or relationship with the legislative scheme for extinguishment of certain interests under ss. 74 and 75. [ 69 ] In my view, the claims advanced in this proceeding, as well as the defences and counterclaims require a fulsome and holistic analysis of the intended operation of all of these sections of the LRA . Deciding the point of law raised by the Korol requires consideration of the overriding interests in s. 73 , at least in this matter.

It would be somewhat perilous to decide a narrow point of law and attempt to apply it in the circumstances of this case leaving other related issues of fact and law to be determined at trial. [ 70 ] I also consider the importance of the questions raised to the operation of the LRA regime in Nova Scotia. Conclusion [ 71 ] In my view, deciding the point as framed on this motion does not necessarily carry with it any prospect of summarily disposing of the entire matter.

In coming to this conclusion, I have considered the criteria of proportionality, along with the object of the Rules to support a just, speedy and inexpensive determination of every proceeding. In order to achieve these goals in this case, all of the related issues for adjudication must be determined together. This is consistent with the criteria in Rule 13.04(6). [ 72 ] The motion for

summary judgment is dismissed. [ 73 ] This proceeding is scheduled for trial next month. Nevertheless, there must be compliance with Rule 13.08. The parties are asked to contact scheduling to convene a hearing for directions which may be conducted by telephone. Gogan, J.