SUPREME
COURT OF CANADA
|
Citation:
Nelson (City) v. Mowatt, 2017 SCC 8
|
Appeal heard:
October 7, 2016
Judgment
rendered: February 17, 2017
Docket: 36999
|
Between:
Corporation
of the City of Nelson
Appellant
and
Mary
Geraldine Mowatt and Earl Wayne Mowatt
Respondents
-
and –
Attorney
General of British Columbia
Intervener
Coram: McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon,
Côté and Brown JJ.
|
Reasons for
Judgment:
(paras. 1 to 44)
|
Brown J. (McLachlin C.J. and Moldaver, Karakatsanis,
Wagner, Gascon and Côté JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
nelson (city) v. mowatt
Corporation of the City of
Nelson Appellant
v.
Mary Geraldine Mowatt and
Earl Wayne Mowatt Respondents
and
Attorney General of British Columbia Intervener
Indexed as: Nelson (City) v. Mowatt
2017 SCC 8
File No.: 36999.
2016: October 7; 2017: February 17.
Present: McLachlin C.J. and Moldaver, Karakatsanis, Wagner,
Gascon, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Property
— Real property — Adverse possession — Required elements — Successive occupants
— Possessors of land alleging that their predecessors acquired title to
disputed lot by adverse possession and seeking declaration that they are owners
of lot — Chambers judge found gap in evidence for period of four years
interrupted continuity of adverse possession — Whether evidence put before
chambers judge was sufficient to bridge evidentiary gap — Whether Court of
Appeal erred by substituting its own findings of fact for those properly
arrived at by chambers judge — Whether inconsistent use requirement forms part
of law of British Columbia.
The Mowatts claim
title to a parcel of land located in Nelson, British Columbia. While they took
possession of the disputed lot in 1992, their claim rests upon continuous
adverse possession thereof by three families in succession, beginning in the
early 20th century. To enforce their claim, the Mowatts brought two
proceedings: an action for a declaration that the provincial Crown, which holds
registered title, does not own the disputed lot and therefore could not
transfer it to the City of Nelson; and a petition for judicial investigation
under the Land Title Inquiry Act into their title to the disputed lot. The
chambers judge granted the City’s summary trial application to dismiss both
proceedings, pointing to an evidentiary gap — an interruption in the continuity
of adverse possession running from approximately 1916 to 1920. The Court of
Appeal reversed, finding that the chambers judge had erred in his treatment of
the evidence of continuous occupation, and concluding that continuous adverse
possession of the disputed lot was demonstrated from December 1909 to at least
February 1923. The Court of Appeal also held that lack of registration did not
prevent the transfer to the Mowatts of their predecessor’s interest in the
disputed lot, and that the law of British Columbia does not require the Mowatts
to demonstrate that their use of the disputed lot was inconsistent with the
intended use of the true owner.
Held: The
appeal should be allowed.
Adverse possession is
a longstanding common law device by which the right of the prior possessor of
land, typically the holder of registered title, may be displaced by a
trespasser whose possession of the land goes unchallenged for a prescribed
period of time. To meet the test of establishing adverse possession, the act of
possession must be open and notorious, adverse, exclusive, peaceful, actual and
continuous. The adverse possessor who successfully obtains title need not
always be the same person whose adverse possession triggered the running of the
limitation period. The inconsistent use doctrine that is, that the possessor’s
use of the disputed lot must have been inconsistent with the true owner’s
present or future enjoyment of the land, does not accord with the legislation
in the province of British Columbia and therefore, the inconsistent use
requirement forms no part of the law of British Columbia governing adverse
possession.
The burden lay with
the Mowatts to demonstrate continuous possession on the balance of
probabilities, and not with the City to demonstrate abandonment. No legal
significance lies in the absence of an explicit finding of abandonment by the
chambers judge. It follows from his finding here that continuous possession of
the disputed lot was not established beyond January 1916, that it was abandoned.
Possession does not require continuous occupation, as the common law recognizes
that a person may possess land in a manner sufficient to support a claim to
title while choosing to use it intermittently or sporadically. That is,
property can be possessed without being at all times occupied. While the
chambers judge occasionally referred to possession and occupation seemingly
interchangeably, it is apparent that he knew he was to look for continuous
possession, not occupation. The meaning of the two concepts essentially
overlapped on the facts of this claim, and there is no error in the chambers
judge’s application of the test for adverse possession arising from his
occasional references to occupation.
While the Court of
Appeal’s finding of fact that adverse possession of the dispute lot was
continuous from December 1909 to at least February 1923 is not unreasonable,
the possibility of alternative findings based on different ascriptions of
weight presents no basis for overturning the findings of a fact‑finder. It
is not the role of appellate courts to second‑guess the weight to be
assigned to the various items of evidence. Absent palpable and overriding error
— that is, absent an error that is plainly seen and has affected the result — an
appellate court may not upset a fact‑finder’s findings of fact. The Court
of Appeal erred by interfering with a factual finding where its objection, in
substance, stemmed from a difference of opinion over the weight to be assigned
to the evidence. In the context of historical adverse possession claims, the
quality of the supporting evidence must be merely as satisfactory as could
reasonably be expected, having regard to all the circumstances. The chambers
judge in this case, in considering the evidence before him, was carefully
attuned to the historical nature of the claim and to its implications for the
quality and availability of evidence. The chambers judge, having held two
hearings, and having carefully canvassed the evidence in cogent and thorough
reasons for judgment, reached findings that were available to him on the evidence.
Those findings should not have been disturbed. Given the chambers judge’s
finding that no interest in the disputed lot was acquired by adverse
possession, it is unnecessary to address whether the Mowatts’ claim was
defeated for lack of registration.
Cases Cited
Considered:
Dominion Atlantic Railway Co. v. Halifax and South Western Railway Co.,
[1947] S.C.R. 107; Ocean Harvesters Ltd. v. Quinlan Brothers Ltd.,
[1975] 1 S.C.R. 684; referred to: The Queen v. Lincoln Mining
Syndicate Ltd., [1959] S.C.R. 736; Leigh v. Jack (1879), 5 Ex. Div.
264; Keefer v. Arillotta (1976), 13 O.R. (2d) 680; Fletcher v.
Storoschuk (1981), 35 O.R. (2d) 722; John Austin & Sons Ltd. v.
Smith (1982), 35 O.R. (2d) 272; Masidon Investments Ltd. v. Ham (1984),
45 O.R. (2d) 563; Gorman v. Gorman (1998), 110 O.A.C. 87; Brisebois
v. Chamberland (1990), 1 O.R. (3d) 417; Hodkin v. Bigley (1998), 20
R.P.R. (3d) 9; Elliott v. Woodstock Agricultural Society, 2008 ONCA 648,
92 O.R. (3d) 711; Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39, 222
N.S.R. (2d) 103; MacKinnon, Re, 2003 PESCAD 17, 226 Nfld. & P.E.I.R.
293; Lutz v. Kawa, 1980 ABCA 112, 23 A.R. 9; Maher v. Bussey,
2006 NLCA 28, 256 Nfld. & P.E.I.R. 308; J. A. Pye (Oxford) Ltd. v.
Graham, [2002] UKHL 30, [2003] 1 A.C. 419; Lord Advocate v. Lord Lovat
(1880), 5 App. Cas. 273; Sherren v. Pearson (1887), 14 S.C.R. 581; Handley
v. Archibald (1899), 30 S.C.R. 130; Wood v. LeBlanc (1904), 34
S.C.R. 627; Hamilton v. The King (1917), 54 S.C.R. 331; R. v.
Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General),
2005 SCC 25, [2005] 1 S.C.R. 401; F.H. v. McDougall, 2008 SCC 53, [2008]
3 S.C.R. 41; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Canada
(Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56; Tweedie v.
The King (1915), 52 S.C.R. 197; Attorney‑General for British
Columbia v. Canadian Pacific Railway, [1906] A.C. 204.
Statutes and Regulations Cited
Escheats Act, R.S.B.C. 1924, c. 81,
s. 3A [am. 1924, c. 18, s. 2].
Escheats Act Amendment Act, 1924, S.B.C.
1924, c. 18, s. 2.
Land Act, R.S.B.C. 1996, c. 245,
s. 8
Land Act, S.B.C. 1970, c. 17,
s. 6.
Land Title Act, R.S.B.C. 1996,
c. 250, s. 20.
Land Title Inquiry Act, R.S.B.C. 1996,
c. 251, ss. 8(c), 11.
Law and Equity Act, R.S.B.C. 1996,
c. 253, s. 2.
Limitation Act, R.S.B.C. 1996,
c. 266, s. 14(5).
Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16.
Limitation of Actions (Realty) Act,
R.S.N. 1952, c. 145.
Limitations Act, S.B.C. 1975,
c. 37.
Real Property Limitation Act, 1833
(U.K.), 3 & 4 Will. 4, c. 27.
Statute of Limitations, R.S.B.C. 1897,
c. 123.
Statute of Limitations, R.S.B.C. 1924,
c. 145, ss. 16, 17.
Statute of Limitations, R.S.B.C. 1960,
c. 370, s. 48.
Authors Cited
Anger & Honsberger Law of Real
Property, 3rd ed., by Anne Warner La Forest, ed. Toronto: Canada Law
Book, 2016 (loose‑leaf updated September 2016, release 16).
Lubetsky, Michael H. “Adding Epicycles: The Inconsistent Use
Test in Adverse Possession Law” (2009), 47 Osgoode Hall L.J. 497.
Ziff, Bruce. Principles of Property Law, 6th ed. Toronto:
Carswell, 2014.
APPEAL
from two judgments of the British Columbia Court of Appeal (Saunders, Chiasson
and Harris JJ.A.), 2016 BCCA 113, 83 B.C.L.R. (5th) 396, 384 B.C.A.C. 101,
663 W.A.C. 101, 395 D.L.R. (4th) 432, 46 M.P.L.R. (5th) 27, 63 R.P.R. (5th) 8,
[2016] 8 W.W.R. 63, [2016] B.C.J. No. 474 (QL), 2016 CarswellBC 611 (WL
Can.), setting aside two decisions of Kelleher J., 2014 BCSC 988, 25
M.P.L.R. (5th) 79, 46 R.P.R. (5th) 217, [2014] B.C.J. No. 1104 (QL), 2014
CarswellBC 1580 (WL Can.), and 2014 BCSC 2219, [2014] B.C.J. No. 2907
(QL), 2014 CarswellBC 3538 (WL Can.). Appeal allowed.
Ryan D. W.
Dalziel, A. Scott McW. Boucher and Daniel R.
Bennett, Q.C., for the appellant.
K. Michael
Stephens, Stephanie McHugh and Ryan J. M.
Androsoff, for the respondents.
Barbara
Carmichael and Cory R. Bargen, for the
intervener.
The judgment of the Court was delivered by
Brown J. —
I.
Introduction
[1]
This appeal concerns the law of adverse
possession in British Columbia. The respondents, Mary Mowatt and Earl Mowatt,
claim title to a parcel of land located at 1114 Beatty Avenue, in Nelson,
British Columbia (the “disputed lot”). While they took possession of the
disputed lot in 1992, their claim rests upon what they say is continuous
adverse possession thereof by three families in succession, beginning in the
early 20th century. To enforce that claim, the Mowatts brought two proceedings:
an action for a declaration that the provincial Crown, which holds registered
title, does not own the disputed lot and therefore could not transfer it to the
appellant, City of Nelson (“City”); and a petition for judicial investigation
under the Land Title Inquiry Act, R.S.B.C. 1996, c. 251 into their title
to the disputed lot.
[2]
The chambers judge granted the City’s summary
trial application to dismiss both proceedings, pointing to what he
characterized as an “evidentiary gap” — that is, an interruption in the
continuity of adverse possession, running from approximately 1916 to 1920. The
Court of Appeal reversed, finding that the chambers judge had erred in his
treatment of the evidence of continuous occupation, and concluding that
continuous adverse possession of the disputed lot was demonstrated from
December 1909 to at least February 1923. In response to the City’s submissions,
the Court of Appeal also held that lack of registration did not prevent the
transfer to the Mowatts of their predecessor’s interest in the disputed lot,
and that the law of British Columbia does not require the Mowatts to
demonstrate that their use of the disputed lot was inconsistent with the
intended use of the “true owner”.
[3]
For the reasons that follow, I would allow the
appeal. The Court of Appeal correctly held that the inconsistent use
requirement forms no part of British Columbia law governing the proof of
adverse possession. That said, the Court of Appeal, in my respectful view,
erred by substituting its own findings of fact for those properly arrived at by
the chambers judge. In light of that conclusion, it is unnecessary for me to
address arguments regarding the significance, if any, of the fact that the
purported transfer of the disputed lot was not registered in accordance with
British Columbia’s land titles system.
II.
Overview of Facts and Proceedings
A.
Background
[4]
The Mowatts are the registered owners of 1112
Beatty Avenue (the “registered lot”), situated immediately to the west of the
disputed lot. No visible boundary separates the lots. Indeed, both lots had
originally comprised part of a larger single lot, title to which was registered
in absolute fee in 1891 by the Nelson City Land and Improvement Company (the
“land company”). That registration showed the lot as being located in Fairview,
which was incorporated into the City of Nelson in April 1921.
[5]
In 1920, the land company transferred a parcel
of land, including what is now the registered lot, to John Annable, who
registered his title in indefeasible fee. Annexed to the deed on registration
was Reference Plan No. 89281, which purported to dedicate the disputed lot as a
road allowance. Unbeknownst to both the land company and Mr. Annable, that
dedication was invalid for lack of compliance with the relevant statutory requirements,
leaving the land company as the registered owner of the disputed lot in
absolute fee.
[6]
In 1922, Mr. Annable transferred a portion of
his lot to Herbert Thorpe. This transaction created the registered lot.
[7]
Still operating under the misapprehension that
it had validly dedicated the disputed lot as a road allowance, the land company
in 1929 notified British Columbia’s registrar of companies that it had
“disposed of its assets several years ago to [Mr. Annable]”. The land
company dissolved in 1930, and the disputed lot escheated to the Crown in 1930
or 1931.[1]
[8]
The Mowatts’ claim to ownership of the disputed
lot rests substantially upon what they say was its continuous adverse
possession by three successive families: the Coopers, the Gouchers, and the Thorpes.
There is no dispute that each of these families resided on the disputed lot,
although for just how long they did so is contested in the case of the Coopers
and the Gouchers. Certain findings by the chambers judge, however, help to
establish a general chronology:
(1) From as early as 1909 until January 1916 (when he moved to
Australia), George W. Cooper (“George W.”) lived in a residence on the disputed
lot with his family.
(2) After George W. moved to Australia, his son George R. Cooper
(“George R.”) remained in the Kootenay region of British Columbia with his wife
Carrie and their children. George R. worked at the smelter in Trail, British
Columbia from February 1917 until his death in February 1918.
(3) Frank and Mary Goucher lived in the residence on the disputed lot
for some period after the Coopers left, and before the Thorpes arrived in 1922.
Evidence before the chambers judge (the Fairview voters’ list) placed them in
Fairview in November 1920, while a record of their son’s attendance at school
in Fairview as well as their absence from the Nelson voter’s list suggested
their presence in Fairview in 1919.
(4) In 1922, Herbert Thorpe purchased the registered lot. While building
the stone house that currently stands there, he rented the residence on the
disputed lot from Mr. Goucher and lived there until the residence burnt down in
1923.
(5) In 1959, Mr. Thorpe transferred the registered lot to his children.
His daughter, Gwen Marquis, transferred it to the Mowatts in 1992.
B.
Judicial History
(1)
Supreme Court of British Columbia — 2014 BCSC
988, 25 M.P.L.R. (5th) 79 and 2014 BCSC 2219
[9]
Acquisition of title to land in British Columbia
by adverse possession was abolished on July 1, 1975 with the coming into force
of the Limitations Act, S.B.C. 1975, c. 37. Title to land acquired by
adverse possession before July 1, 1975, however, was preserved and could
continue to be claimed, subject to the ability of the holder of registered
title to bring a proceeding enforcing his or her rights within the applicable
limitation period: Limitation Act, R.S.B.C. 1996, c. 266, s. 14(5).
[10]
Two applicable limitation periods were
identified at first instance.[2] The limitation period which all parties were agreed could apply is
contained in s. 16 of the Statute of Limitations, R.S.B.C. 1924, c. 145,
which prescribed that an action to recover land had to be brought within 20
years. This would allow the Mowatts to succeed by showing continuous adverse
possession of the disputed lot for 20 years preceding its escheat in 1930 or
1931.
[11]
Additionally, the Mowatts pointed to s. 48 of
the Statute of Limitations, R.S.B.C. 1960, c. 370, which barred
the Crown from suing for the recovery of land after the expiration of 60 years.
Given the abolition of acquiring title by adverse possession on July 1, 1975,
this provision, if applicable, would allow the Mowatts to succeed by
establishing continuous adverse possession for 60 years before that date. The
City and the Crown, however, argued that adverse possession was actually
abolished as against the Crown on May 1, 1970 by operation of s. 6 of
the Land Act, S.B.C. 1970, c. 17 (now s. 8 of Land Act, R.S.B.C.
1996, c. 245), which precluded the acquisition of an interest in Crown land “by
prescription, or by occupation not lawfully authorized, or by any colour of
right”. If applicable, this provision would require the Mowatts to establish
adverse possession for 60 years prior to May 1, 1970.
[12]
Ultimately, the chambers judge did not have to
decide whether adverse possession was abolished as against the Crown in 1970 or
1975 because, in two sets of reasons, he found that the Mowatts had not
demonstrated continuous adverse possession for 20 years preceding 1930 or 1931,
or for 60 years preceding 1970 or 1975. In the first set of reasons, he
explained that the Mowatts could not overcome what he described as an
“evidentiary gap” regarding possession between the last evidence of George W.
living on the lot in 1916 and the Gouchers’ arrival in Fairview in 1920 (2014
BCSC 988 (“BCSC #1”), at para. 107). He was also unconvinced that the Gouchers
had ever resided on the disputed lot. The second set of reasons (2014 BCSC 2219
(BCSC #2)) arose from the conclusion to the first set of reasons, in which the
chambers judge — in accordance with s. 11 of the Land Title Inquiry Act[3] — granted the Mowatts 30 days to provide further evidence. The
Mowatts did so, re-appearing before the chambers judge with further evidence
about the relationship of the Coopers and the Gouchers to the disputed lot,
which evidence they say bridged any “gap” in the continuity of adverse possession
between 1916 and 1920. While this evidence satisfied the chambers judge that
the Gouchers had indeed resided on the disputed lot, he remained of the view
that continuity of possession was not made out from 1916 to 1920, and he
dismissed the Mowatts’ action and petition.
(2)
Court of Appeal for British Columbia — 2016 BCCA
113, 83 B.C.L.R. (5th) 396
[13]
The Mowatts appealed, arguing that the chambers
judge had erred in law by conflating continuous possession with
continuous occupation, and erred in fact by finding a gap in possession
between 1916 and 1920 in the absence of any evidence of re-entry by the land
company or of abandonment by the Coopers. While contesting these grounds, the
City advanced two other bases upon which it also relies at this Court for upholding
the decisions of the chambers judge: that the Mowatts could not have acquired
an interest in the disputed lot, and therefore lacked standing to advance their
claim ; and that the adverse possession claim must fail because it did not
fulfill the inconsistent use requirement — meaning, that the Mowatts did not
prove that the successive adverse possessors’ use of the disputed lot was
inconsistent with the land company’s or the Crown’s enjoyment of the land.
[14]
The Court of Appeal first considered the question
of whether Ms. Marquis transferred her possessory interest to the Mowatts. This
was framed as an issue of standing because the City did not raise it before the
chambers judge. In the Court of Appeal’s view, the evidence was sufficient to
show that the Mowatts had acquired a possessory interest in the disputed lot
from Ms. Marquis, and that no formalities were required for such a transfer.
Further, it said that the transfer of an interest in “possessory title” was not
subject to s. 20(1) of the Land Title Act, R.S.B.C. 1996, c. 250
(which addresses registration of instruments purporting to deal with land). It
concluded that s. 20 applies only to land held in indefeasible fee simple, and
not to land such as the disputed lot which is held in absolute fee. The Court
of Appeal further found on the basis of English and Canadian jurisprudence that
the inconsistent use requirement forms no part of the law of British Columbia
governing adverse possession.
[15]
Finally, the Court of Appeal found that the
chambers judge made several errors in deciding the Mowatts’ claim.
Specifically, he erred in appearing to require continuous occupation, whereas
sporadic occupation could suffice to ground possession. Further, in finding an
“evidentiary gap”, the chambers judge “short-changed the application of the
standard of proof” by “hold[ing] back from full consideration of the reasonable
inferences available on the evidence before the court” (para. 87) relating to
the period from 1916 to 1920. In light of the historical nature of the Mowatts’
claim, the chambers judge should have applied “a broad elliptical assessment of
the available evidence consistent both with established deduction processes
used in historical and scientific study, and with the curious-minded view
reflected in jurisprudence of claims involving long ago events” (para. 89).
[16]
The Court of Appeal therefore allowed the
appeal, set aside the chambers judge’s orders, declared that the possession of
the disputed lot had begun no later than December 1909 and continued until at
least February 1923 (when the residence on the disputed lot burnt down), and
remitted the Mowatts’ proceeding under the Land Title Inquiry Act back
to the Supreme Court of British Columbia for final determination of the
proceedings.
III.
Analysis
A.
Inconsistent Use
[17]
Adverse possession is a longstanding common law
device by which the right of the prior possessor of land, typically the holder
of registered title and therefore sometimes referred to as the “true owner”,
may be displaced by a trespasser whose possession of the land goes unchallenged
for a prescribed period of time. From as early as The Limitation Act,
1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s
right to recover possession was curtailed by limitation periods. This rule
allowing for the later possessor acquiring ownership of land after the passage
of a certain time was codified in English law by the Real
Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, which was
received into the law of British Columbia on November 19, 1858 by operation of
what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Since
then, British Columbia’s successive limitation statutes, including the
provisions which I have already canvassed and which govern the Mowatts’ claim,
have effectively reproduced the 1833 English statutory codification of adverse
possession. Under those statutes, the limitation period began to run at the
point in time at which the true owner’s right to recover possession first
arose: the date of dispossession or discontinuance of possession (see for
example s. 17 of the Statute of Limitations (1924)), as determined by
the test for adverse possession.
[18]
As to that test, the elements of adverse
possession, all of which must be present to trigger the running of the
limitation period against the “true owner”, are explained by Professor Ziff in Principles
of Property Law (6th ed. 2014), at p. 146. In brief, the act of possession
must be “open and notorious, adverse, exclusive, peaceful (not by force),
actual (generally), and continuous” (ibid. (footnote omitted)).
Significantly for this case, the adverse possessor who successfully obtains
title need not always be the same person whose adverse possession triggered the
running of the limitation period; successive adverse possessors can “tack” on
to the original adverse possession, provided that the possession is continuous
in the sense that there is always someone for the true owner to sue (Anger
& Honsberger Law of Real Property (3rd ed. (loose-leaf)), by
A.W. La Forest, ed., at §28:50).
[19]
To these elements of adverse possession the City
would add: that the possessor’s or possessors’ use of the disputed lot must
have been inconsistent with the “true owner’s” present or future enjoyment of
the land. Alternatively put, possession, to be truly adverse, must entail a use
of the property that is inconsistent with the true owner’s intended use of the
land. This “inconsistent use” requirement was stated by Lord Bramwell in Leigh
v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273:
I do not think that there was any
dispossession of the plaintiff by the acts of the defendant: acts of user are
not enough to take the soil out of the plaintiff and her predecessors in title
and to vest it in the defendant; in order to defeat a title by dispossessing
the former owner, acts must be done which are inconsistent with his
enjoyment of the soil for the purposes for which he intended to use it:
that is not the case here, where the intention of the plaintiff and her
predecessors in title was not either to build upon or to cultivate the land,
but to devote it at some future time to public purposes. The plaintiff has not
been dispossessed, nor has she discontinued possession, her title has not been
taken away, and she is entitled to our judgment. [Emphasis added.]
[20]
The inconsistent use requirement appears in the
jurisprudence of Ontario (i.e., Keefer v. Arillotta (1976), 13 O.R. (2d)
680 (C.A.); Fletcher v. Storoschuk (1981), 35 O.R. (2d) 722 (C.A.); John
Austin & Sons Ltd. v. Smith (1982), 35 O.R. (2d) 272 (C.A.); Masidon
Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.); Gorman v.
Gorman (1998), 110 O.A.C. 87; Brisebois v. Chamberland (1990), 1
O.R. (3d) 417 (C.A.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (Ont.
C.A.); Elliott v. Woodstock Agricultural Society, 2008 ONCA 648, 92 O.R.
(3d) 711) and has also been applied in the appellate jurisprudence of Nova
Scotia (Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39, 222 N.S.R.
(2d) 103) and Prince Edward Island (MacKinnon, Re, 2003 PESCAD 17, 226
Nfld. & P.E.I.R. 293). Its application has, however, been rejected in
Alberta (Lutz v. Kawa, 1980 ABCA 112, 23 A.R. 9) and restricted in
Newfoundland and Labrador to consideration as a relevant but not a required
factor in determining whether adverse possession has been established (Maher
v. Bussey, 2006 NLCA 28, 256 Nfld. & P.E.I.R. 308, at paras. 50-52).
Before us, the City argued the merits of considering the (in)consistency
between the putative adverse possessor’s intended use and the true owner’s
intended use of land. I note that counter-arguments have been made to the
effect that the inconsistent use requirement is unnecessary and undesirable (M.
H. Lubetsky, “Adding Epicycles: The Inconsistent Use Test in Adverse Possession
Law” (2009), 47 Osgoode Hall L.J. 497, at pp. 523-25). Indeed, it is no
longer required in England, having been denounced as “heretical and wrong” by
Lord Browne-Wilkinson in J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL
30, [2003] A.C. 419, at para. 45.
[21]
In my view, the question properly before this
Court is not whether the inconsistent use requirement is necessary or
desirable; we have received no submissions, for example, on whether it should
continue to apply to claims based on adverse possession in Ontario. Rather, the
question properly before us is whether it forms part of the law of British
Columbia and therefore ought to have been applied by the courts below. I am of
the opinion that the City cannot demonstrate that it does.
[22]
As Lord Browne-Wilkinson observed in J.A. Pye,
the inconsistent use requirement stated in Leigh appeared to revive the
pre-1833 doctrine of adverse possession, under which “the rights of the paper
owner were not taken away save by a ‘disseisin’ or an ouster and use of the
land by the squatter of a kind which was clearly inconsistent with the paper
title” (para. 33). That former concept of adverse possession had, however, been
abolished in England by the Real Property Limitation Act, 1833, under
which “the only question was whether the squatter had been in possession in the
ordinary sense of the word [for the prescribed period of time]” (para. 35).
Consequently, the requirement of showing an inconsistent use, not having formed
part of the law of England at the date of its reception in British Columbia,
was never necessary to establish dispossession under British Columbia’s
subsequent limitations statutes, which essentially reproduced the 1833 English
legislation.
[23]
Nor has the inconsistent use requirement been
imported into British Columbia by the courts. The Court of Appeal’s thorough
review of this issue contains no suggestion that British Columbia’s courts have
adopted the requirement of inconsistent use, and the City does not suggest
otherwise. The City does, however, point to two decisions of this Court as
“reflecting” the inconsistent use requirement: Dominion Atlantic Railway Co.
v. Halifax and South Western Railway Co., [1947] S.C.R. 107;
and Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., [1975] 1
S.C.R. 684.
[24]
Dominion Atlantic involved a dispute over ownership of lands between the “true owner”
and a lessee who had continued to use the land after the lease had expired. In
a brief judgment for the Court, Kellock J. cited two alternative tests for
possession (pp. 109-10): Lord O’Hagan’s statement in Lord Advocate v. Lord
Lovat (1880), 5 App. Cas. 273, at p. 288 that possession must be considered
in each case with reference to the peculiar circumstances, and Lord Bramwell’s
inconsistent use requirement stated in Leigh. Neither test, however, was
endorsed or applied, since Kellock J.’s decision hinged on the finding that the
lessee had not maintained exclusive possession (p. 110), which would defeat an
adverse possession claim under either test.
[25]
In Ocean Harvesters, oceanfront land was
used by the true owner for receiving fresh fish. He permitted his company (he
was president and controlling shareholder) to occupy it during the fishing
season each year, and the question arose whether he was barred from asserting
title to the land by operation of The Limitation of Actions (Realty) Act,
R.S.N. 1952, c. 145, after the company had been in possession thereof for more
than 21 years. While this Court considered the intended use of the true owner,
this was due to the unusual circumstance in which his intention was also
animating the later possessor, which he controlled. That is, in order to
determine the company’s intention in this case, the Court had to consider the
true owner’s intention so that it could be imputed to the company. But this is
not the same thing as assessing the true owner’s intention so that it can be
measured against the later possessor’s intention for inconsistency. In any
event, the adverse possession claim in Ocean Harvesters, like that in Dominion
Atlantic, was dismissed not for a lack of inconsistent use but for want of
exclusive possession (Ocean Harvesters, p. 691; Dominion Atlantic,
p. 110).
[26]
In neither of these decisions, therefore, can
this Court be said to have adopted, whether explicitly or by implication, the
inconsistent use requirement. It also bears mentioning that this Court has also
considered adverse possession claims on several occasions since Leigh
(i.e., Sherren v. Pearson (1887), 14 S.C.R. 581; Handley v. Archibald
(1899), 30 S.C.R. 130; Wood v. LeBlanc (1904), 34 S.C.R. 627; and Hamilton
v. The King (1917), 54 S.C.R. 331), without ever expressing or applying an
inconsistent use requirement.
[27]
Further, introducing the inconsistent use requirement
into the test for adverse possession would revive the pre-1833 necessity of
showing a disseisin or an ouster, explicitly removed by statute. While courts
have a role in defining what constitutes dispossession under British Columbia’s
limitations legislation, legislative intent must be respected. The Court of
Appeal was correct to hold (at para. 68) that “the [inconsistent use] doctrine
does not accord with the legislation in this Province which has continued to
accord with the 1833 English limitations legislation”. It follows that the
inconsistent use requirement forms no part of the law of British Columbia
governing adverse possession. Whether the requirement is properly applicable in
other provinces remains an open question subject to examination of their
respective legislative histories, the wording of their particular limitations
statutes, and the treatment of these matters by the courts of those provinces.
B.
The Evidence on Continuity of Adverse Possession
[28]
This leaves the issue of whether the evidence
put before the chambers judge by the Mowatts was sufficient to bridge any
“evidentiary gap” from 1916 to 1920 that the chambers judge found had
interrupted the continuity of adverse possession of the disputed lot. The
Mowatts say the chambers judge erred in several respects, and that those errors
justified reversal by the Court of Appeal. Specifically, they say the chambers
judge (1) erred by confusing continuous possession with continuous occupation;
and (2) failed to properly consider material evidence, in keeping with the
historical context of the claim.
(1)
Continuous Possession vs. Continuous Occupation
[29]
First of all, the Mowatts say the chambers judge
erred in assessing continuous adverse possession by confusing possession
with occupation, requiring them to show continuous occupation when the
central question went to continuity of possession. Relatedly, they say that,
since property can be possessed without being at all times occupied, the
chambers judge’s finding of discontinuity of possession from 1916 to 1920
required a preliminary finding that he did not make — specifically, that the
disputed lot had been abandoned by the Coopers in 1916.
[30]
I will first dispose of the argument regarding
abandonment. It was unnecessary for the chambers judge to make an explicit
finding that the Coopers had abandoned the disputed lot as a precondition to a
finding of discontinuity of possession. The burden lay with the Mowatts to
demonstrate continuous possession on the balance of probabilities, and not with
the City to demonstrate abandonment. Moreover, an end to possession, and
abandonment, are simply two sides of the same coin. Where possession ends,
abandonment begins. No legal significance, therefore, lies in the absence of an
explicit finding of abandonment; it follows from the finding that continuous
possession of the disputed lot was not established beyond January 1916 that it
was abandoned.
[31]
As to whether the chambers judge confused
possession with occupation, I acknowledge that “possession” does not require
continuous occupation. The common law recognizes that a person may possess land
in a manner sufficient to support a claim to title while choosing to use it
intermittently or sporadically (R. v. Marshall, 2005 SCC 43, [2005] 2
S.C.R. 220, at para. 54). In short, property can be possessed without being at
all times occupied. And, I also acknowledge that the chambers judge’s repeated
use of the term “occupation” (as opposed to “possession” — see, e.g., BCSC #1,
paras. 109 and 112 and BCSC #2, paras. 3, 46 and 52 (CanLII)) lends support to
the Mowatts’ argument that he confused these two distinct concepts.
[32]
I am not, however, persuaded that this supports
upsetting the chambers judge’s decisions. While the chambers judge occasionally
referred to “possession” and “occupation” seemingly interchangeably, it is
apparent that he knew he was to look for continuous possession, not occupation.
And, he cited the correct legal test (BCSC #1, paras. 22-23). Further, the
distinction between these two concepts was, on the facts of this case,
insignificant. The evidence led by the Mowatts respecting the Coopers,
Gouchers, and Thorpes generally went to their occupation of the disputed
lot. No form of possession by any of them short of occupation during the
“evidentiary gap” was posited to the chambers judge as being supported by the
evidence. In short, the meaning of the two concepts essentially overlapped on
the facts of this claim, and I see no error in the chambers judge’s application
of the test for adverse possession arising from his occasional references to
occupation.
(2)
Consideration of the Evidence
[33]
The critical consideration underlying the
“evidentiary gap” is the evidence relating to the activities of the Coopers and
the Gouchers between 1916 and 1920, inclusive. More particularly, both the
parties and the chambers judge were focussed upon the evidence in relation to
whether any of the Coopers continued to possess the disputed lot after George
W.’s departure in January 1916; and whether and for how long the Gouchers
possessed the disputed lot prior to their appearance on the Fairview voters’
list in November 1920.
[34]
As to the Coopers, it will be recalled that
George W. moved to Australia in January 1916. His son George R. married Carrie
in May 1915, and a daughter, Delores, was born that same month. A son, George
S., followed in October 1916. From February 1917 until his death in February
1918 in an industrial accident, George R. worked at a smelter in Trail, British
Columbia. It is likely that, by December 1917 at the latest, Carrie and the
children had joined him in Trail.
[35]
The chambers judge acknowledged that, on this
evidence, it was possible to conclude that members of George R.’s family
continued to possess the disputed lot after January 1916. He declined to make
that finding, however, since in his view it was no more likely than the
alternative possibility that George R. had left the disputed lot for other
premises upon his marriage. The Mowatts and the Court of Appeal say that, in so
finding, the chambers judge did not account for the implication of the
statement from George S.’s daughter (that is, George R.’s granddaughter) that
she “understood” her mother (George S.’s wife) to have “thought” that George S.
had been born “at the bottom of Third or Fourth Street”, which accords with the
location of the disputed lot.[4] The suggestion is, of course, that — since George S. was born nine
months after George W.’s departure for Australia — George R. and his family
must have continued to possess the disputed lot.
[36]
The chambers judge did, however, account
for this statement, referring to it (BCSC #2, at para. 38) and then concluding
(BCSC #2, at para. 40) that the evidence, taken together, did not persuade him
of continuous possession. In light of the equivocal quality of the statement, and
the multiple layers of hearsay contained within it, he was manifestly entitled
to so conclude.
[37]
As to the Gouchers, the Mowatts say that the
chambers judge failed to consider the significance of the evidence that the
Gouchers’ son wrote school examinations in Fairview in December 1919, and of
the omission of the Gouchers from the Nelson voters’ list in 1919. The chambers
judge specifically took note of that evidence as well as of evidence that the
Coopers were known to the Gouchers. The difficulty for the chambers judge was,
however, that, while this evidence would place the Gouchers in Fairview as
early as 1919, it did not demonstrate to his satisfaction that they possessed
the disputed lot at that time. In any event, and as the chambers judge
observed, even if the Mowatts could satisfy him that the Gouchers had possessed
the disputed lot earlier than 1920, other evidence suggested that the Gouchers
were recorded as living in Nelson, not Fairview, in 1916. In other words, even
allowing for possession by the Gouchers of the disputed lot as early as 1919,
that would still have left a discontinuity of possession, albeit a briefer one,
that would have been fatal to the Mowatts’ claim.
[38]
I acknowledge that the Court of Appeal’s finding
of fact that adverse possession of the disputed lot was continuous from
December 1909 to at least February 1923 is not unreasonable. It is certainly
possible to weigh parts of the evidence differently than the chambers judge
did. The possibility of alternative findings based on different ascriptions of
weight is, however, not unusual, and presents no basis for overturning the
findings of a fact-finder. It is not the role of appellate courts to
second-guess the weight to be assigned to the various items of evidence. Absent
palpable and overriding error — that is, absent an error that is “plainly seen”
and has affected the result — an appellate court may not upset a fact-finder’s
findings of fact (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235, at paras. 6 and 10; see also H.L. v. Canada (Attorney General),
2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55). The standard of palpable and
overriding error applies with respect to the underlying facts relied upon by
the trial judge to draw an inference, and to the inference-drawing process
itself (Housen, at para. 23). In my respectful view, the Court of
Appeal erred by interfering with a factual finding where its objection, in
substance, stemmed from a difference of opinion over the weight to be assigned
to the evidence. The chambers judge, having held two hearings, the latter of
which occurred as a result of his allowing the Mowatts an opportunity to adduce
further evidence, and having carefully canvassed the evidence in two sets of
cogent and thorough reasons for judgment, reached findings that were available
to him on the evidence. Those findings should not have been disturbed.
[39]
My conclusion is unaffected by the historical
nature of the claim, which the Court of Appeal thought merited an assessment of
the evidence that is “broad” and “curious-minded”. The City criticizes this
aspect of the Court of Appeal’s reasons. It says that, in light of the Court of
Appeal’s statement (at para. 74) that “how [the standard of proof on a balance
of probabilities] may be met depends on the proof that is capable of
presentation”, the Court of Appeal should be taken as having effectively
imported a new standard of proof. This is, the City adds, contrary to this
Court’s direction in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41,
at para. 40 that there is “only one civil standard of proof at common law and
that is proof on a balance of probabilities”.
[40]
I do not take the Court of Appeal to have
espoused or applied a standard of proof other than the balance of
probabilities. The impugned statements go not to the standard of proof, but to
the quality of evidence by which that standard is to be met. This Court said in
McDougall (at para. 46) that “evidence must
always be sufficiently clear, convincing and cogent”. Those are relative, not
absolute qualities. It follows that the quality of evidence necessary to meet
that threshold so as to satisfy a trier of fact of a proposition on a balance
of probabilities will depend upon the nature of the claim and of the evidence
capable of being adduced (Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010, at para. 82; Canada (Attorney General) v. Fairmont Hotels Inc.,
2016 SCC 56, at para. 36). In the context of historical adverse possession
claims, the quality of the supporting evidence must merely be “as satisfactory as
could reasonably be expected, having regard to all the circumstances” (Anglin
J., as he then was, in Tweedie v. The King (1915), 52 S.C.R. 197, at p.
220; see also Sir Arthur Wilson in Attorney General for British Columbia v.
Canadian Pacific Railway, [1906] A.C. 204 (P.C.), at pp. 209-10).
[41]
That said, I respectfully part company from the
Court of Appeal in its criticisms of the chambers judge’s assessment of the
evidence. In my view, the chambers judge, in considering the evidence before
him, was carefully attuned to the historical nature of the Mowatts’ claim and
to its implications for the quality and availability of evidence. Portions of
his reasons in this regard merit extensive reproduction here (BCSC #1, paras.
105 and 108), as they demonstrate his sensitivity in this respect:
I agree with the
petitioners that there need not be evidence of possession for every calendar
year of the claim period. Thus, if there were cogent evidence that party A took
possession in 1912 and transferred possession to party B in 1914, it is a fair
and reasonable inference that party A was in possession in 1913. In the words
of Tweedie, there is “no reason to suppose” that party A abandoned the
lands for a period of time.
. . .
Putting the petitioners’
case at its highest again, even if I find the Cooper and Goucher residences
were one and the same and on the Disputed Area, there is no evidence of
continuity of the Coopers’ adverse possession with the Gouchers. In arriving
at my conclusions, I am cognizant of the standard of record-keeping nearly a
century ago; however, I am not satisfied that the evidence is “as satisfactory
as could reasonably be expected, having regard to all the circumstances”: Tweedie
at 220. The fact that the Gouchers are recorded as living back on Baker Street
in Nelson in 1916 is not something I can ignore. Further, according to Ms.
Mowatt’s Affidavit #1, the 1918 Directory lists neither the Coopers nor the
Gouchers. The petitioners have provided no evidence of adverse possession of
the Disputed Area for 1917-1919. [Emphasis added.]
[42]
Given the chambers judge’s finding — untainted
by palpable and overriding error — that the Mowatts had not established
uninterrupted adverse possession over the disputed lot from 1916 through 1920,
it is unnecessary to address the submissions of the City and of the Attorney
General of British Columbia regarding whether the Mowatts’ claim was defeated
for lack of registration. Ms. Marquis held no interest in the disputed lot and therefore
no interest therein passed to the Mowatts.
IV.
Conclusion and Disposition
[43]
I would allow the appeal, and restore the
decisions of the chambers judge.
[44]
The chambers judge made no order as to costs,
citing the particular circumstances of this dispute, including its longstanding
nature, the Mowatts’ knowledge of the dispute at the time of purchase, and the
“inconsistent and contradictory” positions taken by the City and the Province
over the years with respect to the disputed lot (BCSC #2, para. 57). In light
of those circumstances, and of the divided success of the parties on the issues
presented by this appeal, I would also direct that each party shall bear its
own costs in this Court and in the courts below.
Appeal
allowed.
Solicitors for the
appellant: Norton Rose Fulbright Canada, Vancouver.
Solicitors for the
respondents: Hunter Litigation Chambers, Vancouver.
Solicitor for the
intervener: Attorney General of British Columbia, Victoria.
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