Executive Summary: Key Legal and Evidentiary Issues

• Ownership of a disputed fifty-foot strip of land turned on an ambiguity between an 1973 deed and an 1978 deed to the same original parcel.
   
• Conflicting expert survey evidence was presented by both the Plaintiffs and the Defendants regarding the true boundary line.
   
• Malicious prosecution was alleged against Janice Chute and Brandy Parker but was not established on the evidence.
   
• Nuisance was claimed by the Defendants based on the Plaintiffs' use of a backhoe to intimidate family members.
   
• Trespass allegations against the Defendants were found to be minor and did not warrant damages.
   
• Costs and a $2,500 damages award were addressed as part of the final disposition.
   

Facts of the case

This case concerns a boundary dispute between Roland Potter and Vivian Annette Cook-Potter (the Plaintiffs) and Janice Elaine Chute and Brandy Rebeca Parker (the Defendants) over a fifty-foot-wide strip of land referred to as the "Fifty Foot Strip" or "Disputed Land." The Plaintiffs own a property near Clementsvale Road identified as PID 05053715, while the Defendants own an adjoining property to the north, identified as PID 05054283. A right of way runs from the highway to the Plaintiffs' property, crossing the Defendants' land, and the dispute centers on the precise location of the boundary between the two properties.

The origin of the boundary conflict traces back to a series of deeds beginning in 1973, when Robert D. Potter and Helen I. Potter conveyed a northern parcel to Daniel Paul Potter, described as extending 350 feet back from the highway. In 1978, the same grantors conveyed a southern parcel to Daniel Potter, but this deed described the southeast corner of the northern parcel as being 300 feet from the highway rather than 350 feet, creating an internal inconsistency across the two deeds. In 1981, Daniel Potter conveyed the southern parcel to his business, Potter's Auto Salvage Limited, using a description consistent with the 1978 deed. Numerous subsequent conveyances led to the Plaintiffs acquiring the southern parcel in 1998 and 2015, while the Defendants acquired the northern parcel in September 2014.

Beyond the boundary question, the parties presented extensive evidence of an acrimonious relationship, including allegations of trespass, criminal charges against Roland Potter, RCMP involvement, videos of altercations, and a peace bond restricting contact between Roland Potter and members of the Parker/Chute family. The Defendants also counterclaimed, alleging that the Potters interfered with their use and enjoyment of their property, including an incident where Roland Potter drove a backhoe aggressively near a minor and another where the backhoe bucket was held over Janice Chute's head.

Policy and legislative provisions at issue

Several statutory provisions bore on the boundary determination. The Plaintiffs argued that the 1981 conveyance to Potter's Auto Salvage effected a subdivision validated under the Planning Act, R.S.N.S. 1989, c. 346, now section 291 of the Municipal Government Act, S.N.S. 1998, c. 18. Section 291(1) of the Municipal Government Act provides that a failure to comply with that Act or the former Planning Act does not affect the creation of title or interest in real property conveyed before April 16, 1987. The Real Property Transfer Validation Act, R.S.N.S. 1989, c. 386, was also discussed, though the Court noted that Mr. Ross's reference to a "Validation Act of 1987" was not entirely accurate given the actual legislative history. Additionally, section 21(1) of the Land Registration Act, S.N.S. 2001, c. 6, was cited for the principle that a legal description in a register is not conclusive as to the location, boundaries, or extent of a parcel. The elements of malicious prosecution from Nelles v. Ontario and the two-part nuisance test from Antrim Truck Centre Ltd. v. Ontario (Transportation) were also applied.

Reasoning and analysis

Justice Smith applied established principles of deed interpretation, drawing on Goulden v. Nova Scotia (Attorney General) and related authorities, to determine whether the 1981 deed contained a latent ambiguity. The Court found that the 1981 deed was unambiguous on its face but became ambiguous when read alongside the 1973 deed to the neighbouring parcel, since Daniel Potter owned both parcels in 1981. To resolve this latent ambiguity, the Court considered extrinsic evidence, including the competing survey reports of Matthew LeBlanc and William Ross.

Mr. LeBlanc concluded that the northern parcel's boundary was fixed at 350 feet by the original 1973 deed and could not be altered by the erroneous 1978 description. However, the Court noted that Mr. LeBlanc did not address the significance of Daniel Potter owning both parcels in 1981. Mr. Ross, by contrast, concluded from aerial photographs, the location of cement pads from the former auto salvage barn, and a 1986 lease of a 300-foot right of way, that Daniel Potter intended the southern parcel to begin 300 feet from the highway. The Court found Mr. Ross's evidence more compelling, particularly his observation that a 350-foot boundary would have placed the barn and its additions largely on the northern parcel. The Court held that the 1981 conveyance amounted to a validated subdivision, meaning Daniel Potter's later 1989 deed to Consolidated Auto Recyclers could not have conveyed the disputed strip, as it had already passed to Potter's Auto Salvage in 1981.

On the remaining claims, the Court found the evidence of trespass by the Defendants to be minor and insufficient to warrant damages. The malicious prosecution claim — pleaded on behalf of Roland Potter, though the decision refers to this plaintiff as "Ronald C. Potter" in the Amended Statement of Claim and as "Ronald Potter" in the Court's discussion of this specific issue — failed because the required element of malice on the part of Ms. Parker or Ms. Chute was not established; their reports to the RCMP were found to stem from fear of the Potters' conduct rather than malicious intent. On the Defendants' nuisance counterclaim, the Court found that Roland Potter's use of a backhoe to intimidate a minor and to hold the bucket over Janice Chute's head constituted a substantial and unreasonable interference with Brandy Parker's enjoyment of her property.

Ruling and overall outcome

The Court ruled that the Potters own the Fifty Foot Strip and are entitled to a certificate of title, finding it unnecessary to address the alternative claim of possessory title. The Defendants were enjoined from trespassing on the Disputed Land, and each party was enjoined from blocking or interfering with the other's use of the right of way. On the Defendants' nuisance counterclaim, the Court ordered the Potters, on a joint and several basis, to pay Brandy Parker $2,500.00 in general damages within 30 calendar days of the decision. The Plaintiffs were also awarded costs, though the decision does not specify a dollar amount, inviting written submissions from the parties if costs cannot be agreed upon.