Executive Summary: Key Legal and Evidentiary Issues

• The Applicants claim an easement dating back to 1965 allowing access across the Respondent’s property to build a wharf.

• The Respondent challenges the easement’s validity, arguing it was abandoned or narrowly limited.

• A counterclaim alleges the Applicants committed trespass and caused damage by deviating from any valid easement path.

• Affidavit evidence, expert reports, and multiple lay witnesses were required to resolve factual disputes.

• Procedural complexity increased with additional claims, interpretation needs, and witness expansion.

• The court determined the matter could not be resolved efficiently as an Application and must proceed as an Action.

Background and procedural history

The dispute arose when the Applicants—Lingyan Ren, Yanjun Tu, Andrew Keith Dickinson, and Mareen Sarah Kraus—filed a Notice of Application in Court on November 20, 2023, against Grafton Developments Inc. They asserted a right to use an easement dating back to a 1965 Deed, which they claimed allowed access across the Respondent’s property to reach a water lot for the purpose of building a wharf. They argued this easement had priority over all other interests in the property.

Grafton Developments filed a Notice of Contest on January 12, 2024, denying the existence of a valid easement. It argued that if such a right once existed, it had since been abandoned or extinguished, and was originally limited in scope to one household with the right to build a single wharf. That same day, the Respondent also filed a counterclaim, alleging that the Applicants had repeatedly trespassed on its land by transporting a sailboat across areas not covered by the easement, causing damage. The Applicants responded with a detailed contest, disputing all claims of abandonment, trespass, and improper land use.

Throughout 2024, the case became procedurally complicated. Deadlines were set for affidavits, expert reports, and discovery. Witness lists grew to include multiple laypersons, surveyors, and one Applicant who required full-time interpretation in Mandarin. The Applicants also sought to amend their original Application to include a claim for damages, and filed a motion seeking permission to add evidence, subpoena a witness, and obtain costs for interpreter cancellations when the Respondent withdrew from scheduled discovery.

Motion to convert to an action

In June 2025, the Respondent filed a Motion to Convert the proceeding from an Application to an Action, citing Rule 6 of the Nova Scotia Civil Procedure Rules. The court analyzed whether an Action would be more appropriate based on the legal standards in CPR 6.02 and 6.03. The court considered whether the Application process could adequately resolve the issues in light of the increasing complexity, the need for multiple witnesses, expert opinions, evolving claims, and credibility assessments.

The judge found that the Application route was no longer suitable. The proceeding had expanded in scope beyond what could be resolved in the four hearing days originally set for November 2025. The volume of evidence, language accommodations, and procedural changes demonstrated that the case would likely require eight or more days to be heard. Justice Rosinski ruled that continuing under the Application process would not serve the interests of justice or procedural efficiency.

Judicial decision and conclusion

The court granted the Respondent’s Motion to Convert the proceeding into an Action. It found that the case had evolved in a way that demanded a full trial process, with the flexibility to properly assess witness credibility and manage the procedural demands. Justice Rosinski acknowledged that neither party was solely responsible for the change in circumstances, calling it a natural evolution of the case. The Application process was no longer practical given the expanded factual and legal issues.

The ruling did not decide the merits of the underlying property dispute or trespass claims but solely addressed the procedural path the case should follow. The parties were invited to make written submissions on costs within twenty days if they could not agree.