Law Times

Law Times • apriL 3, 2017 Page 7 www.lawtimesnews.com Adverse possession test takes a hit BY JEFFREY LEM T he recent Supreme Court of Can- ada decision in Nelson (City) v. Mowatt 2017 SCC 8 serves as a timely reminder of the many fickle nuances of the doctrine of adverse possession in Canada. In Mowatt, a squat- ter asserted adverse possession over part of an unopened road allowance, but they could not convince the trial judge of the requisite possession during a disputed four-year period around the end of the First Wold War, known as the Gap Years. At the British Columbia Court of Appeal, in Mowatt v. British Columbia (Attor- ney General), 2016 BCCA 113, the appel- late judges reversed the trial judge's opin- ion about possession during the Gap Years, and they awarded adverse possession. The Supreme Court of Canada, how- ever, reversed the Court of Appeal's opin- ion on the Gap Years, restored the trial decision against adverse possession and, in the process, admonished the appellate court to stick to its knitting. "It is not the role of the appellate courts to second-guess the weight to be assigned to the various items of evidence. Absent palpable and overriding error . . . an ap- pellate court may not upset a fact-finder's findings of fact," said the ruling. This is an important procedural re- minder to jurists considering adverse possession cases, since adverse possession cases more often than not turn on ques- tions of fact rather than on questions of law. According to the BCCA decision, Mo- watt was the first British Columbia case to make it to appeal in the last 60 years. Although adverse posses- sion cases are rare in Brit- ish Columbia, they remain very common in Ontario. Ontario is currently 99-per- cent governed by the Land Titles Act, but only recently so, since the older Registry Act governed more than half of the province until the first decade of this century. Although Ontario's Land Titles Act also abolishes ad- verse possession, the aboli- tion only applies once the lands are actual- ly governed by the Land Titles Act. This leaves more than three million properties that only recently migrated into the Land Titles Act subject to practical adverse pos- session risks, if the possessory period crys- tallized before the date of the conversion. Mowatt reminds practitioners that asserting adverse possession against the Crown is procedurally difficult because the Crown enjoys unusually long and pe- culiar possessory periods. It is worth not- ing the BCCA decision is probably a better discussion of these rules as they apply in British Columbia than the SCC decision. In Mowatt, the would-be squatter is asked to prove possession back to the turn of the previous century. Perhaps Mowatt's most enduring leg- acy will be its impact on the inconsistent use test. Greatly paraphrased, the incon- sistent use test requires squatters to estab- lish an even higher threshold of adverse possession. That's because the possession not only must meet the classic tests of nec clam, nec vi and nec precar- io (without stealth, without violence and without per- mission, respectively), but the use of the disputed land must also be materially in- consistent with the use that the registered owner had for the disputed land. For example, the oft-cited Ontario Court of Appeal de- cision Masidon Investments Ltd v. Ham [1984] 45 O.R. (2d) 563 confirmed the in- consistent use test in Ontario by denying a squatter who putatively adversely pos- sessed land on which he then operated a seasonal aircraft landing strip. The court found that the true registered owners had very little immediate use for the rural in- vestment lands other than to hold it until it could be sold, so even an airplane land- ing facility was not materially inconsistent with what the registered owner would have done with the land anyway. As such, the squatting neighbour failed to acquire adverse possession. The inconsistent use test was intended, as a matter of policy, to make it harder for putative squatters to establish adverse pos- session claims by requiring the nature of the adverse possession to be blatantly in- consistent with the registered owner's cur- rent use. In effect, it required putative ad- verse possessors to literally scream out their own illegitimate use of the disputed land. In Masidon, the adverse possessor argued that, in some circumstances, like in the case of development land that is simply in the holding stage, adverse possession becomes all but impossible. The Ontario Court of Appeal agreed with that stark conclusion. The inconsistent use test is not universal throughout Canada. It has no application in Alberta and only limited application in Newfoundland and Labrador. Even in those provinces that adopt the inconsistent use test, the concept has been progressively cut back. In Ontario, the inconsistent use test probably now only applies to knowing trespassers, as opposed to innocent and unknowing adverse possessors. Mowatt raises the question of wheth- er or not there is any life left at all for the inconsistent use test anywhere in Can- ada. On the one hand, in Mowatt, the Supreme Court of Canada seems to ex- plicitly acknowledge that the inconsistent use test still applies in Ontario, Prince Ed- ward Island and Nova Scotia, provinces where inconsistent use test case law was cited. On the other and more interesting hand, the reasoning used by the Supreme Court of Canada in Mowatt to dismiss the inconsistent use test in British Colum- bia could, with very little distortion, apply just as easily to other jurisdictions. These jurisdictions still currently harbour some variation of the test, leaving most dirt law mavens to wonder not if, but when, Mowatt will be argued outside of Brit- ish Columbia as authority for an absolute prohibition against the inconsistent use test. LT uJeffrey Lem is the director of titles for the province of Ontario. This article ref lects the personal view of the author alone. Call for clarity on Crown's duty to consult BY IZAAK DE RIJCKE AND MEGAN E. MILLS T he Crown's duty to consult indigenous peoples — where a decision has the poten- tial to adversely impact existing or asserted aboriginal or treaty rights — finds its root in s. 35 of the Constitution Act, 1982, which states, "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Since the adoption of the language in 1982, indig- enous peoples, resource industries and governments across Canada have all sought clarity about what is meant by the duty to consult. In Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada enunciated the foundational principles behind this duty, in 2004. In the case, the SCC stated the duty to consult is grounded in the concept of the honour of the Crown — a common law concept wherein there is an assumption that the Crown would negotiate and carry out its duties hon- ourably. The honour is derived from the Crown's assertion of sovereignty in the face of prior aboriginal occupation, and it is part of a nation-to-nation relationship. A key component of the process of reconciliation is the duty that f lows from the honour. As such, honour is not a merely abstract or lofty goal with no consequences, but, instead, it has real implications for decisions of the Crown that impact aboriginal or treaty rights. As stated in Haida, "It is not mere incantation, but rather a core precept that finds its application in con- crete practices." Such honour does not reside in, or extend to, third-party private actors and, as the court stated in Haida, the honour of the Crown cannot be delegated. The duty to consult that finds its basis within this honour ultimately rests with the Crown, and it is triggered where the Crown has real or constructive knowledge of a potential claim or right and there is the potential that the contemplated conduct of the Crown may adversely impact this claim or right. While the honour of the Crown cannot be delegat- ed, the Crown may delegate procedural aspects of the duty to consult. In our opinion, this makes a great deal of practical sense to a certain extent. The delegation of procedural elements of consultation to project propo- nents means that those with the greatest knowledge of a proposed project will be engaged directly in the pro- cess of consultation with those whose interests will be impacted most by the project. It can also facilitate the building of positive relationships and working toward what will hopefully be mutually beneficial undertak- ings. Involvement of proponents is also consistent with the direct call to the corporate sector in the 2015 "Truth and Reconciliation Commission of Canada" report to: "Commit to meaningful consultation, building re- spectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects." This represented a call for a broader commitment, supple- mentary to the Crown's duty. For project proponents, consultation and negotiation are part of a practice rath- er than a duty — a practice that is grounded in good business sense, efficiency, relationship building and respect. While these are overall positive principles, they are different in nature and from the solemnity of a duty grounded in the honour of the Crown. Where delegation does occur, there is a potential for erosion of the nation-to-nation negotiating and recon- ciliation process that the duty is intended to encourage. There are further risks of the consultations being of an inconsistent quality and greater complexity, all leading to confusion over who actually bears the responsibility for the consultation. At face value, delegation of the duty may threaten meaningful consultation. In Wabauskang First Nation v. Minister of North- ern Development and Mines et al., the Ontario Div- isional Court confirmed that the Crown had fulfilled its duty to consult, but it articulated areas of improvement. The Court specifically noted the need to define roles between the province, the project proponent and Wabauskang First Nation, to establish proto- cols and to agree upon the matters for discussion and the nature of confidentiality. But more clarity is needed. Amendments to Ontario's Mining Act formally delegate elements of the consulta- tion process to claims, lease and licence holders, with some ministry oversight and support by, for example, requiring the submission of aboriginal consultation plans for exploration permits. Clearly defined roles for all involved will be needed for this to be effective. Confusion over roles led to the dispute in Northern Superior Resources Inc. v Ontario, in which a min- ing company unsuccessfully sought to assert that the Crown owed a duty to third parties in the context of consultation. There, the negotiations and relationship between the third-party mining company and the First Nation had deteriorated. Once aware of the breakdown, government offered facilitation assistance. The mining company took the position that the breakdown of the relationship between it and the First Nation was caused by the Crown's breach of a duty owed to the mining company to consult with the First Nation. This decision — where a duty to a third party was not recognized by the court — demonstrates the confusion and uncer- tainty around the consultation process itself. Unfortunately, this is a confusion that will likely proliferate with further delegated consultation (wheth- er formal or informal) and the uptake of the commit- ment for project proponents to engage directly in con- sultations. Ultimately, when triggered, there is a duty, grounded in honour, that rests only with the Crown and cannot be delegated. The challenge now remains in how to translate the duty into meaningful, feasible, efficient and effective consultation processes. LT uIzaak de Rijcke is a lawyer in Ontario and Yukon and is a certified specialist in real estate law. Megan E. Mills is a lawyer working as a researcher and writer in Guelph, Ont. u SPEAKER'S CORNER COMMENT The Dirt Je rey W. Lem Je rey W. Lem

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