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City of Nelson wins appeal in adverse possession case

|Written By Elizabeth Raymer

The City of Nelson in British Columbia has won its appeal of a British Columbia Court of Appeal decision that found in favour of a couple who had claimed title to a parcel of land under continuous adverse possession.

Lawyer Ryan Dalziel says the SCC found that the BCCA had erred in interfering with the finding of fact related to adverse possession in the case.
Lawyer Ryan Dalziel says the SCC found that the BCCA had erred in interfering with the finding of fact related to adverse possession in the case.

In Corporation of the City of Nelson v. Mary Geraldine Mowatt, et al. the Supreme Court of Canada found unanimously that the City of Nelson’s appeal should be allowed.

“The [British Columbia] Court of Appeal correctly held that the inconsistent use requirement forms no part of British Columbia law governing the proof of adverse possession,” wrote Justice Russell Brown, with Chief Justice Beverley McLachlin and Justices Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté concurring.

“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.”

The Mowatts claimed title to a parcel of land in Nelson, British Columbia, which they took possession of in 1992. Their claim rested upon continuous adverse possession thereof by three families in succession, beginning in 1909. 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 by escheat; 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, namely, 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.

There are three key aspects of the SCC’s decision in the case, says Ryan Dalziel, a partner in Norton Rose Fulbright Canada LLP in Vancouver, who represented the appellant City of Nelson in the case.

First, the SCC found that there is no requirement that the use of the true owner be inconsistent with that of the squatter for the purposes of adverse possession law in B.C. So, as the British Columbia Court of Appeal found, there is no inconsistent use test in B.C.

“The classic elements of adverse possession were all that is required in B.C.,” Dalziel told Legal Feeds, namely that the act of possession must be “open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous.”

Second, the BCCA had found fault with the trial judge in how he approached the evidence, which the Supreme Court took issue with.

“The evidence led by the Mowatts respecting the Coopers, Gouchers, and Thorpes [families that had occupied the land earlier] generally went to their occupation of the disputed lot,” Justice Brown wrote in today’s decision.

“No form of possession by any of them short of occupation during the ‘evidentiary gap’ [between 1916 and 1920] 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.”

Third, Dalziel told Legal Feeds, the SCC found that the BCCA had erred in interfering with the finding of fact related to adverse possession in the case. The chambers judge had found that possession of the disputed land did not take place between 1916 and 1920, while the BCCA found that it did.

“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,” Justice Brown wrote.

“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.”

As for the broader implications of today’s judgment, “I think it sends a strong signal,” Dalziel says, to jurisdictions such as Ontario and Nova Scotia that have used the inconsistent use test, that “those authorities are of questionable value, without expressly so deciding.

“There’s a strong signal that the more … ‘true owner’-friendly approach taken in Ontario and Nova Scotia is questionable.” The SCC “said [the inconsistent use test] is not the law of B.C., but I think the logic will probably extend across the country.”


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