BOUNDARY LAW: AN UPDATE

BOUNDARY LAW: AN UPDATE Presented by Izaak de Rijcke Association of British Columbia Land Surveyors April 5, 2017

VIEW FROM MARINE DRIVE IN WEST VANCOUVER From Google Maps, Google Inc., 2017 All Rights Reserved This location is just down the road from one of the disputes which made its way through the BC courts this past year concerning boundary and property rights. 2

OUTLINE Easements: Riparian Rights, Ancillary Rights, Extent, Implied Easements Encroachments and Surveys Professional Responsibility Adverse Possession View from the Nelson bridge, at a location not far from a dispute regarding the issue of encroachments that was heard at the Supreme Court of Canada. 3

LEARNING GOALS Why do we need to understand these topics? What happens if we ignore these issues? How can we be proactive in avoiding these scenarios in our practice? What are the take-away lessons from the case law to be reviewed? 4

EASEMENTS: Riparian Rights 5

ARBUTUS BAY ESTATES LTD. V. CANADA (A.G.) 2016 BCSC 2083 Public harbour development required right of way over a pathway between proposed wharf and road Easement registered 1960 and public wharf in continuous use since Plaintiff begins subdividing property; pursues a private marina development 6

ARBUTUS BAY ESTATES LTD. V. CANADA (A.G.) Plaintiff begins complaining about wharf in 1990s Federal government divestment gets delayed; Capital Regional District takes over management of wharf Survey of registered easements shows it was not properly described 7

THE REGISTERED EASEMENT doth hereby grant and convey to unto the Grantee, the owner in fee simple of those lands described as Lot 431 [ ] a free and uninterrupted right-of-way in perpetuity but subject to the proviso hereinafter contained, through along and over [ ] Provided, and it is hereby expressly agreed, that if and whenever the operation of the said wharfage facilities is discontinued, the said right-of-way and all rights incidental thereto and hereby granted shall cease and determine [ ] Is there a trespass? A breach of riparian rights? 8

RIPARIAN RIGHTS Discussed in case law North Saanich (District) v. Murray [1975] B.C.J. No. 1126 (C.A.) and includes: A general right of access and regress The is right is private and not public In exercising the right of access the riparian owner must not interfere with any public right of navigation or put down anything that disturbs the foreshore Includes right to pass over the shore or bed and right to moor vessels adjacent to his land 9

INCIDENTAL RIGHTS INCLUDED Plaintiff claimed the wharf interfered with riparian rights by blocking access to deep water and riparian rights were not waived in the easement Court found that the plain language of the easement provided notice to subsequent purchasers of the impairment of riparian rights. The registered easement provided for a right of way in perpetuity, linked to the continued operation of the wharfage facilities. all rights incidental thereto includes impairment of upland property s riparian rights; also parking in this case 10

BUT WHAT ABOUT THE BOUNDARIES? The wharf and footpath structures were located outside the boundaries of the registered easement. Court orders rectification located Nominal damages From: Capital Regional District: https://maps.crd.bc.ca 2016. All rights reserved 11

EASEMENTS: Clarifying the test for implied easements 12

IMPLIED EASEMENT TYPES Easements of necessity Easements giving effect to intended use Easements that fall within the Rule in Wheeldon v. Burrows (i.e. implied easements of apparent accommodation) Requirements: Dominant & servient tenement Easement must accommodate the dominant tenement Dominant and servient owners are different people A right over land must be capable of forming the subject matter of a grant 13

BUT WHAT ABOUT TORRENS? Under Torrens the register is supposed to be everything. That means that one should (in theory anyway) be able to examine an abstract of title for a specific parcel of land and see listed there all of the interests in the land that pertain to that parcel. The register is said to be a mirror of all rights in relation to that land. Ziff, B. Principles of Property Law, 6 th ed. (Toronto: Carswell, 2014) Under the Torrens system any agreements and deeds entered into by the parties themselves remain private agreements, enforceable only between the parties themselves, until ownership is legally transferred by an entry in the register book. Taylor, G. The Law of the Land: The Advent of the Torrens System in Canada (Toronto: University of Toronto Press, 2008) at 10 14

IMPLIED EASEMENTS STRICT TEST! Necessary for reasonable enjoyment of property Access! Used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant Apparent at the time the land for which the easement is claimed was acquired 15

ROOP V. HOFMEYR, 2016 BCCA 310 Shared driveway provided the only vehicular access to dwelling on appellants property, otherwise accessible only by stairs Implied easement? Apparent accommodation? From Google Maps Google Inc., 2017 All Rights Reserved 16

EASEMENTS: Ancillary rights 17

WOLFF V. CANADA (ATTORNEY GENERAL) 2017 BCCA 30 Only access by way of path through park, path maintained as public road No registered easement, but predecessor in title had authorization from Parks Canada for motor vehicle access From Google Maps Google Inc., 2017 All Rights Reserved 18

WOLFF V. CANADA (ATTORNEY GENERAL) Summary Trial Equitable easement claim maintained the laneway as a travelled highway Is there an implied right beyond access? Appeal Trial judge found no history in connection with power line that would fit test for proprietary estoppel, no reliance, no ancillary right Test for proprietary estoppel: representation & reliance 19

WOLFF V. CANADA (ATTORNEY GENERAL) Reasonable expectation if the lane is maintained as a public road, does it follow that electrical service should be permitted to be installed along that roadway? Reasonable expectations are considered at the remedy stage rather than at stage to determining whether equity exist or the extent of that equity. 20

ANCILLARY RIGHTS a right reasonably necessary for the exercise or enjoyment of the easement. The right to install an underground power line does not relate to the exercise or enjoyment of the equitable easement. Rather it benefits the dominant tenement (i.e. the Property). What the appellant is endeavouring to accomplish though this argument is to expand the extent of the equity through the guise of an ancillary right. Wolff v. Canada (Attorney General) 2017 BCCA 30 at para 40 21

EASEMENTS: Clarifying the extent of Right of Way 22

BIRCH V. BRENNER, 2017 BCCA 22 Easement described as a right of way over the private road for persons, animals and vehicles Does this right refer exclusively to access from the road or does it include access to the foreshore? Trial judge finds access along full length of the Private Road Image from decision Birch v. Brenner, 2017 BCCA 22 23

ARE RIGHTS OF WAY STRICTLY LIMITED TO ACCESS? Court of Appeal examines the nature of a right of way A right of way is not limited to access and egress, but did have some limits The easements are rights of way, and as such, they only allow the respondents to use the servient tenement for the purpose of passing from Lower Road to their lands, and from their lands to the foreshore. The order, in stating that the respondents have free, full and uninterrupted use of the servient tenement fails to recognize this limitation. Birch v. Brenner, 2017 BCCA 22 at para 38 24

ENCROACHMENTS & SURVEYS: Property Law Act s. 36 25

PROPERTY LAW ACT, R.S.B.C. 1996, C. 377 Section 36, Encroachment on adjoining land, allows the court to do the following in the event a survey shows an encroaching building or fence: (a) declare an easement (with compensation to paper title holder); (b) vest title (with compensation to paper title holder); or (c) order removal of encroachment. Several recent cases have applied Section 36: Langley v. Yang, 2012 BCSC 1520 Oyelese v. Sorensen, 2013 BCSC 940 District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96 26

DISTRICT OF WEST VANCOUVER (CORP. OF) V. LIU 2016 BCCA 96 Encroachment of various structures carport, patio, family room, wall, koi pond onto road allowance No survey at time of purchase, but inquiries as to whether structures were authorized had commenced no follow through District had attempted to arrange transfer of land with previous owner and petitioner without success From Google Maps Google Inc., 2017 All Rights Reserved 27

DISTRICT OF WEST VANCOUVER (CORP. OF) V. LIU Survey obtained by District staff Failed negotiations for purchase District brings petition; Liu counters Were the encroachments unauthorized/unlawful? Chambers Judge finds the complete absence of any explanation for how district employees overlooked such an obvious encroachment for so many years [...] led to the inference that they did not overlook it but knew it was unauthorized Easement granted by Chambers Judge 28

PROPERTY LAW ACT S. 36 Issues on Appeal concerning s. 36 of the Property Law Act: Does s. 36 apply to public lands? Can court make and order under s. 36 that overrides municipal council procedures? Should it do so? Does the balance of convenience favour such an order? 29

PROFESSIONAL RESPONSIBILITY: Understanding the Land Surveyor s Duty of Care 30

PROFESSIONAL RESPONSIBILITY Land surveyors are professionals governed by the Land Surveyors Act R.S.B.C. 1996, c. 248 Provides the statutory authority for the self regulation of the profession, the establishment of the Association; empowers the association to pass bylaws related to governance, discipline and professional standards Code of Ethics is part of the Association s ongoing commitment to continuous improvement and in following its vision to fulfill its public trust as a progressive and accountable profession 31

CODE OF ETHICS The ideals of ethical professional conduct require that all members shall: 1. Exercise professional integrity in the conduct of every survey and expression of independent professional judgement. 2. Provide services in a completely unbiased manner to ensure that the interests of a client do not take precedence over the interests of society as a whole. Every BCLS has an obligation to serve the cadaster and society before the interests of the client. [ ] 32

APPLYING THE CODE OF ETHICS How does the professional surveyor s duty to society play out in practice where the surveyor is called by a client to retrace a boundary which is in dispute? Is there any duty owed to the client s neighbour? What might such a duty entail? Could it be enough to trigger a negligence claim by the neighbour?? 33

BURKE V. WATSON & BARNARD (A FIRM) 2016 BCCA 439 Plaintiff makes negligence claim for pure economic loss against the neighbour s surveyor Underlying History Dispute between plaintiff and her neighbours over the location of a fence: Phillips v. Keefe. Neighbours hire surveyor Summary trial decision in favour of neighbours, BCCA orders second trial Judge at second trial concludes survey is incorrect, awards damages and costs Second appeal upholds second trial decision, orders costs 34

BURKE V. WATSON & BARNARD (A FIRM) Costs awarded to plaintiff did not cover full costs incurred Plaintiff brings proceedings against the neighbour s surveyor to recover her out of pocket costs and future expenses Application to strike in chambers: No claim made out no duty of care owed by the surveyor to someone who is not the surveyor s client Unrecovered legal costs are not damages in a negligence action 35

BURKE V. WATSON & BARNARD LOWER COURT RULING Other decisions have held that a surveyor does owe a duty of care to an adjoining property owner Black v. Norris, 2012 NBQB 346 Robertson v. Wallace, 2000 ABQB 1020, 2004 ABCA 258 Chambers judge found the stringent test to strike a pleading had not been met 36

BURKE V. WATSON & BARNARD (A FIRM) In the face of two considered decision of other Canadian courts of first instance, I am unable to conclude that there is no chance that the plaintiff may succeed in establishing a duty of care in this case. In addition, I do see the logic in distinguishing the work of a land surveyor, who is expressing an opinion not only about the boundary of his or her own client s lands, but also the boundary of the adjoining land from that of a solicitor who clearly has a duty of loyalty to act only in the interests of his or her client. It may well be that the defendants will persuade the trial judge that no duty of care is owed in this case. However, at this stage of the proceedings, I cannot find there is no reasonable chance that the court will not find in their favour on this issue. 37

DUTY OF THE LAWYER ASADVOCATE Commentary to Rule 5.1-1 of the Code of Professional Conduct for the Law Society of British Columbia [1] Role in adversarial proceedings In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law[ ] 38

LAWYER IS NECESSARILY PARTISAN Commentary to Rule 5.1-1 of the Code of Professional Conduct for the Law Society of British Columbia [3] The lawyer s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged [ ] to assist an adversary or advance matters harmful to the client s case. Contrast this with the duty of the land surveyor to Provide services in a completely unbiased manner to ensure the interests of a client do not take precedence over the interests of society as a whole [British Columbia Land Surveyors Code of Ethics] 39

DUTY OF CARE? Common law test for duty of care, the Anns/Cooper test includes the question: Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in the circumstances. reasonable foreseeability of the harm must be supplemented by proximity (Cooper v. Hobart, 2001 SCC 79) there must be a relational context between the parties that gives rise to a duty of care (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465) 40

DUTY OF CARE IN ADVISORY CONTEXT Policy concern behind the sufficient proximity test is the issue of indeterminate liability Does a duty of care extend to everyone who might be impacted by a surveyors opinion? All neighbours? Future owners? To whom is duty owed? 41

REASONABLE FORESEEABILITY & PROXIMITY Examine the relationship between the plaintiff and defendant, from Cooper: Defining the relationship may involve looking at expectations, representations, reliance, and the property or other interests involved. Essentially, these are factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendant and to determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant. Cooper v. Hobart, 2001 SCC 79, at para. 34 42

THE SURVEYOR S RELATIONSHIPS Society at Large Client Land Surveyor Neighbour (party to the boundary dispute) Other adjoining property owners 43

ROLE AND DUTY Surveyors are routinely retained by landowners to provide opinions when there is a dispute over a property boundary. In such cases they owe a duty to their clients to perform their services at an acceptable standard of care. This obligation, however is secondary to and cannot supersede their primary duty of impartiality owed to society at large. Further, absent an agreement between property owners to the contrary, surveyors are not the ultimate arbiters of boundary disputes between landowners. They merely provide an opinion. Burke v. Watson & Barnard (A Firm) 2016 BCCA 439 at para 61 44

THE SURVEYOR S RELATIONSHIPS Society at Large: Overarching duty of impartiality Client: provide opinion perform services at an acceptable standard of care Land Surveyor Neighbour (party to the boundary dispute): Duty to consider the expectations, legitimate interests which may be impacted by surveyor s opinion Other adjoining property owners: Duty to consider the expectations, legitimate interests which may be impacted by surveyor s opinion 45

BURKE V. WATSON & BARNARD (A FIRM) The fact that defendant s survey detrimentally impacted the the plaintiff is not enough to show duty of care in the context of negligent misrepresentation or negligent performance of a service Need to show proximity: did the defendant assume responsibility for the plaintiff s interests? For making out the case of negligent misrepresentation: reliance is necessary In Burke, the relational proximity was not established 46

ADVERSE POSSESSION: Clarifying the law in British Columbia 47

ADVERSE POSSESSION Adverse possession is a common law doctrine that recognizes a possessory estate in fee simple ( squatters rights ) There is a conflict between the right of the true paper owner and the person in possession Relatively unusual; adverse possession is not an every-day event in British Columbia. 48

FINDING ADVERSE POSSESSION THE BASICS acts of possession must be open and notorious, adverse, exclusive, peaceful (not by force), actual (generally) and continuous If any one of these elements is missing, at any stage during the statutory period, no rights against the paper owner can be successfully asserted Principles of Property Law, 6 th ed. (Toronto: Carswell, 2014), Bruce Ziff, pg. 142 Possessor need not be the same person, provided possession is continuous 49

HISTORY OF BRITISH COLUMBIA S LEGISLATIVE FRAMEWORK England s Real Property Limitation Act, 1833 (3 & 4 Will 4, c. 27) was received into BC law in 1858 through the precursor to section 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253 Required the true owner to sue to recover possession of land within a limitation period 20 years, 60 years for Crown land Statute of Limitations, R.S.B.C. 1960, c. 370 Though litigation is relatively common in other Canadian jurisdictions, the legislative framework for land titles in British Columbia makes adverse possession cases a rarity 50

ADVERSE POSSESSION IN B.C. Common law doctrine of adverse possession was abolished by statute, July 1, 1975. Present statute, Limitation Act, S.B.C. 2012, c. 13, reads: Adverse possession 28 (1) Except as specifically provided by this or any other Act, no right or title in or to land may be acquired by adverse possession. (2) Nothing in this Act interferes with any right or title to land acquired by adverse possession before July 1, 1975. Claims still possible where criteria met for a 20 or 60 year period before July 1, 1975. 51

MOWATT V. BRITISH COLUMBIA (A.G.) 2016 BCCA 113 Applicants were registered owners of lot in Fairview area of Nelson, B.C. since 1992 Claim is based on adverse possession of lot by three families in succession (early 20 th c.) No distinct physical boundaries on the ground A From Google Maps, Google Inc., 2017 All Rights Reserved 52

MOWATT V. BRITISH COLUMBIA (A.G.) Disputed lot dedicated as road allowance in 1920 by Nelson City Land and Improvement Company (invalid dedication) Provincial crown has held title to the disputed lot since approximately 1930 when land company dissolved and lot escheated to crown Limitation period? 20 years prior to the escheat in 1930-31 (1910-1930) 60 years prior to July 1, 1975 or May 1, 1970 53

TIMELINE OCCUPATION OF THE DISPUTED LOT 1909-1916?-? 1922-1992 1992-Present (Cooper) (Goucher) (Thorpe) (Mowatts) 54

LOWER COURT HISTORY Lower court judge did find an evidentiary gap between 1916 and 1922, does not need to determine the correct limitation period Applicants granted 30 days to provide further evidence, they do so - but the chambers judge remained of the view that continuity of possession was not made out. 55

COURT OF APPEAL Appeal was allowed: The chambers judge had erred in appearing to require continuous occupation where sporadic occupation would have been sufficient Given the historic nature of the 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) 56

NELSON (CITY) V. MOWATT 2017 SCC 8 City of Nelson appealed to the Supreme Court of Canada. Is inconsistent use a necessary element for a claim of adverse possession? How do continuous possession, continuous occupation, and abandonment figure into a finding of adverse possession? Should the Court of Appeal have interfered with the lower court s finding of fact? 57

INCONSISTENT USE TEST Elements of adverse possession: Open Notorious Adverse Exclusive Peaceful (not by force) Actual (generally) Continuous Does this list also include the inconsistent use test? 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 58

INCONSISTENT USE TEST AND THE BC STATUTE Requirement originated in UK Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.) Brought into Ontario Law through Keefer v. Arillotta (1976, 13 O.R. (2d) 680 (C.A.) and applied in N.S. and P.E.I.; but rejected in Alberta Has NOT been endorsed or applied by BC courts To bring it in would revive requirements that had been removed in 1833 by statute The SCC concluded that the TEST DOES NOT APPLY IN BC! 59

OCCUPATION VS POSSESSION VS ABANDONMENT Did the lower court judge err by confusing confusing continuous possession with continuous occupation? Possession does not require continuous occupation; in this claim the meanings overlap Does a finding of discontinuity of possession require a finding of abandonment? 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; - from decision at para. 30_ 60

STANDARD OF REVIEW: PALPABLE AND OVERRIDING ERROR 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-finders findings of fact. [citations omitted] 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. [ ] 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. Nelson (City) v. Mowatt, 2017 SCC 8 at para 38 61

THE TREATMENT OF HISTORICAL EVIDENCE: HOW MUCH DO WE NEED TO RESEARCH? 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 [ ] the chambers judge, in considering the evidence before him, was carefully attuned to the historical nature of the Mowatt s claim and to its implications for the quality and availability of evidence Brown J., Nelson (City) v. Mowatt, 2017 SCC 8 at paras. 40-41(citations omitted) 62

REMARKS Boundary issues are alive and well in courts across the country and continue to abound in British Columbia, in spite of the certainty that the Torrens system is to provide The majority of cases discussed in today s presentation are all mere months old Liu being the oldest having been released in February of 2016 This is an ever changing and evolving area of law with our courts continually faced with questions that require further clarity. But it stands on a bedrock of fundamental principles. These principles are set out in a book released last year, the Principles of Boundary Law in Canada 63

PRINCIPLES OF BOUNDARY LAW IN CANADA TABLE OF CONTENTS Chapter 1: Boundaries in History and Law Chapter 2: How Boundaries are Created Chapter 3: The Role of Intention in Retracing Boundaries Chapter 4: Adverse Possession and Boundaries Chapter 5: Boundaries of Easements Chapter 6: Boundaries of Public Roads Chapter 7: Boundaries and Land Registration Systems Chapter 8: Natural Boundaries Chapter 9: Boundaries and Aboriginal Title Chapter 10: Boundaries and Co-ordinates Appendix 1: The Canadian Context of Common Law for Land Surveyors Appendix 2: Overview of Land Surveying for Lawyers Appendix 3: Boundaries and Ethics 64

USING THE BOOK Book bridges the two professions of law and surveying Explain learning objectives Use questions to guide reading encourages an active use of text to search for answers Ask students to understand how they learn and modify approach be most effective in promoting understanding 65

REVISITING THE LEARNING GOALS Why do we need to understand these topics? Case law remains one of the most important sources of law and boundary principles for land surveyors What happens if we ignore these issues? Competency is potentially compromised How can we be proactive in avoiding these scenarios in our practice? More CPD; more reading What are the take-away lessons from the case law? Learning to speak the language of lawyers Knowing hot button issues before they arise 66