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CIVIL PROCEDURE - Applications and motions

Monday, May 13, 2019 @ 11:12 AM  


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Appeal by Freeman from the dismissal of her motion to convert the respondents’ application into an action. The appellant had blocked the respondents’ original right of way that ran through her property after rerouting the right of way. The respondents then filed an application to restore their original access. The judge concluded that substantive rights were being eroded and that the delay in proceeding by action would further erode the respondents’ substantive rights and proceeding by application would significantly lessen the impact of that delay. The appellant argued that the motion judge incorrectly found there was a presumption in favour of an application and that there was no presumption in favour of an action.

HELD: Appeal dismissed. There was no error in the judge’s analysis of whether the presumption in favour of an application was triggered. There was evidence before the judge which was sufficient to support his finding that substantive rights were being eroded in a material way by the unilateral actions of the appellant servient tenement. The respondents had a vested proprietary right to use their right of way. The evidence supported the judge’s finding that the delay in proceeding by action would further erode the respondents’ substantive rights and proceeding by application would significantly lessen the impact of that delay. A presumption in favour of an application precluded a presumption in favour of an action. The judge exercised his discretion judiciously. There was no basis to interfere with his determinations.

Payne v. Elfreda Freeman Alter Ego Trust (2015) (Trustee of), [2019] N.S.J. No. 156, Nova Scotia Court of Appeal, D.R. Beveridge, E. Van den Eynden and A.S. Derrick JJ.A., April 10, 2019. Digest No. TLD-May132019002