Corporation of the City of Nelson v. Mary Geraldine Mowatt et al., 2017 SCC 8 (Property — Real property — Adverse possession)

On appeal from the judgement of the British Columbia Court of Appeal (2016 BCCA 113) setting aside two decisions of Kelleher J., (2014 BCSC 988, 2014 BCSC 2219).

The Mowatts claim title to a parcel of land located in Nelson, British Columbia. While they took possession of the disputed lot in 1992, their claim rests upon continuous adverse possession thereof by three families in succession, beginning in the early 20th century. 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; 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 — 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.

Held (7-0): The appeal should be allowed.

Adverse possession is a longstanding common law device by which the right of the prior possessor of land, typically the holder of registered title, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. To meet the test of establishing adverse possession, the act of possession must be open and notorious, adverse, exclusive, peaceful, actual and continuous. The adverse possessor who successfully obtains title need not always be the same person whose adverse possession triggered the running of the limitation period. The inconsistent use doctrine that is, that the possessor’s use of the disputed lot must have been inconsistent with the true owner’s present or future enjoyment of the land, does not accord with the legislation in the province of British Columbia and therefore, the inconsistent use requirement forms no part of the law of British Columbia governing adverse possession.

The burden lay with the Mowatts to demonstrate continuous possession on the balance of probabilities, and not with the City to demonstrate abandonment. No legal significance lies in the absence of an explicit finding of abandonment by the chambers judge. It follows from his finding here that continuous possession of the disputed lot was not established beyond January 1916, that it was abandoned. Possession does not require continuous occupation, as the common law recognizes that a person may possess land in a manner sufficient to support a claim to title while choosing to use it intermittently or sporadically. That is, property can be possessed without being at all times occupied. While the chambers judge occasionally referred to possession and occupation seemingly interchangeably, it is apparent that he knew he was to look for continuous possession, not occupation. The meaning of the two concepts essentially overlapped on the facts of this claim, and there is no error in the chambers judge’s application of the test for adverse possession arising from his occasional references to occupation.

While the Court of Appeal’s finding of fact that adverse possession of the dispute lot was continuous from December 1909 to at least February 1923 is not unreasonable, the possibility of alternative findings based on different ascriptions of weight 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. 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 finder’s findings of fact. 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. In the context of historical adverse possession claims, the quality of the supporting evidence must be merely as satisfactory as could reasonably be expected, having regard to all the circumstances. The chambers judge in this case, in considering the evidence before him, was carefully attuned to the historical nature of the claim and to its implications for the quality and availability of evidence. The chambers judge, having held two hearings, and having carefully canvassed the evidence in cogent and thorough reasons for judgment, reached findings that were available to him on the evidence. Those findings should not have been disturbed. Given the chambers judge’s finding that no interest in the disputed lot was acquired by adverse possession, it is unnecessary to address whether the Mowatts’ claim was defeated for lack of registration.

Reasons for judgment by Brown J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. concurring)

Neutral Citation : 2017 SCC 8

Docket Number: 36999