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Top court revisits test for adverse possession

Thursday, March 02, 2017 @ 7:00 PM | By Cristin Schmitz

The quality of evidence necessary to establish historic civil claims on the balance of probabilities “must merely be as satisfactory as could reasonably be expected” in all of the circumstances, the Supreme Court said in an adverse possession judgment from B.C. with national impact.

Justice Russell Brown’s 7-0 judgment Feb. 17 overturns two British Columbia Court of Appeal orders last year which would have allowed the respondents, May and Earl Mowatt, to continue to try to obtain legal recognition they have title to a disputed property in Nelson, B.C., which is claimed by the provincial Crown: Nelson (City) v. Mowatt 2017 SCC 8.

The Mowatts contended they got the land as part of their 1992 purchase of an adjacent property from a seller, whose purported title rested on what the respondents said was two decades of continuous adverse possession by three families who lived there successively from 1909 until the 1930s.

However, the top court restored decisions by the chambers judge below — who granted summary judgment against the respondents on the basis that a four-year gap from 1916 to 1920 interrupted the continuity of the families’ possession and thus was fatal to the Mowatts’ adverse possession claim. Consequently title to the land, which escheated to the B.C. Crown in 1930 or 1931, is expected to be transferred to the appellant City of Nelson to be used for municipal purposes.

The city’s counsel, Ryan Dalziel of Vancouver’s Norton Rose Fulbright, said Mowatt is of note to real estate practitioners across Canada because the court casts doubt on the proposition that squatters claiming adverse possession must prove their use of the property is inconsistent with the use intended by the true owner — a requirement imposed by appellate courts in Ontario, Nova Scotia and P.E.I., but rejected in Alberta.

The Supreme Court ruled that under B.C. statute and or the province’s common law there is no “inconsistent use” requirement, but expressly left it an open question in other provinces, subject to examination of their respective legislative histories, the wording of their limitations statutes and local jurisprudence.

“The relevant statutes being materially the same across the country as far as I know, this certainly sends a strong signal that the inconsistent use test is not good law anywhere in this country,” Dalziel opined.

He suggested that the import of the decision goes beyond adverse possession cases because the court recognizes there will be a variation in the quality of evidence necessary to meet the civil standard of proof in cases involving historic claims.

“The court appears to have made allowance for the ‘quality of evidence’ needed to get to a balance of probabilities to vary depending on the nature of the case,” Dalziel said.

As Justice Brown put it, the quality of the evidence that is accepted to be “sufficiently clear, convincing and cogent” to meet the “balance of probabilities” standard in each civil case “will depend upon the nature of the claim and of the evidence capable of being adduced.” This means, “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’…”

Justice Brown noted that “clear, convincing and cogent” are relative, not absolute qualities.”

“I think the message here is that when it comes to proving a civil case there is more play in the joints,” Dalziel said. “And there has to be sensitivity to the kind of proof that can reasonably be expected in the circumstances — in this case, historical land possession…One wonders where this aspect of the decision could be taken, both at trial in proving a case, and on appeal in saying the judge took too strict a view of the evidence at first instance.”

Dalziel predicted that because adverse possession was abolished in B.C. in 1975, the court’s observations on that area of the law will likely have more impact in Ontario and Atlantic Canada where adverse possession continues to be litigated, “It will be interesting to see whether, or how quickly, this decision is taken up as displacing the Ontario jurisprudence in those places,” he observed by e-mail.

In an article mentioned by Justice Brown, Michael Lubetsky of Toronto’s Davies Ward Phillips & Vineberg LLP, argued that the inconsistent use requirement is both unnecessary and undesirable.

He called it “remarkable” that in Mowatt the Supreme Court permitted division among six appellate courts in common law provinces to continue.

“Adverse possession is a basic common law concept developed over time by the courts — like ‘consideration’ or ‘duty of care,’ ” he noted by e-mail. “In the absence of intervention from a provincial legislature, it is not a concept that one would normally expect to differ from one common law province to another. As it stands now, however, following Mowatt, the inconsistent use test forms part of the law of Ontario, Nova Scotia and P.E.I.; it has been categorically rejected in Alberta and B.C.; and occupies a middle ground in Newfoundland and Labrador.”

Lubetsky suggested “it is quite possible that the Supreme Court wanted to signal its disapproval of the inconsistent use test but was reluctant to sweep away over three decades of jurisprudence in Ontario, and elsewhere, without a fuller briefing and consideration of all the implications.”

If the divergence among the provinces persists, the issue will likely go to the Supreme Court again, Lubetsky added. “However, in light of Mowatt, it is also possible that the courts in Ontario, Nova Scotia and P.E.I. start to move away from the inconsistent use test themselves.”

Justice Brown held that the B.C. Court of Appeal should not have reweighed the evidence presented below, and gone on to find continuous adverse possession, since there was no palpable and overriding error in how the chambers judge assessed the evidence. “It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence,” Justice Brown emphasized.

At press time, counsel for the Mowatts was not available for comment.