Nelson (City) v Mowatt : Don’t Apply the Inconsistent Use Doctrine in BC (and Don’t Meddle with the Trial Judge)

In Nelson (City) v Mowatt, 2017 SCC 8 [Mowatt], the Supreme Court of Canada (“SCC”) recently found that the British Columbia Court of Appeal (“BCCA”) erred when it interfered with the finding of fact related to adverse possession in 2016 BCCA 113, setting aside two decisions of Kelleher J., 2014 BCSC 988 and 2014 BCSC 2219. The SCC unanimously granted the City of Nelson’s appeal.

“Tacking On” the Facts

This appeal is centered on the law of adverse possession in British Columbia.  Specifically, the dispute concerns a parcel of land located near the Respondent City of Nelson (“City”) in British Columbia.  The Mowatts claimed title to the lot, of which they took possession in 1992. They grounded their claim on the successive, continuous adverse possession by three families beginning in 1909.  The City contested that the Mowatts’ claim in adverse possession must fail.

Adverse possession is defined as the act of occupying land of another person, absent legal title, for a duration of time that establishes the occupying person as the legal owner.  In British Columbia, a party need only prove fundamental elements to establish adverse possession, namely that the possession is “open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous.” (Mowatt, para 18)

Procedural History of the Case

The Mowatts, seeking to establish their title to the land, brought two proceedings to enforce their claim:

  1. A declaration stating that the Mowatts are the owners of the lot in fee simple in possession with marketable title in fee simple meaning that the holder of the registered title, the provincial Crown, did not own the lot and therefore could not transfer it to the City of Nelson by escheat; and
  2. A petition for judicial investigation of their title to the disputed lot, pursuant to the Land Title Inquiry Act, RSBC 1996, c 251.

The chambers judge granted the City’s application and dismissed both of the Mowatts’s proceedings on the basis of  a gap in the (not so) continuous adverse possession from 1916 to 1920.

The BCCA reversed the chambers judge’s decision and instead ruled in favour of the Mowatts, finding that:

  1. The chambers judge erred in ruling on the evidence of continuous occupation. What mattered instead was continuous adverse possession, which there was evidence of from December 1909 to February 1923; and
  2. The absence of registration could not thwart the transfer to the Mowatts of their predecessor’s interest in the lot, and BC law did not necessitate the element of inconsistent use for proving adverse possession. Therefore, the Mowatts need not prove that their use of the lot was inconsistent with the intended use of the true owner.

The case was remitted to the SCC for a final determination.

SCC Key Findings

  • “That’s What She Said” There is no inconsistent use test in BC. The SCC agreed with the BCCA in its find that the BC law governing adverse possession does not require proof of inconsistent use (wrote Justice Russell Brown, with the remaining six justices concurring).
  • “And that’s the way it is.” Appellate courts should not set aside trial judge’s findings of facts. The SCC ruled that the BCCA erred in applying its findings of fact in lieu of those made by the chambers judge. For this reason, the SCC did not proceed to consider the fact that the alleged transfer of the lot was not registered in adherence with BC’s land titles system. The SCC importantly stated that appellate courts should not amend the chambers judge’s findings of fact absent palpable and overriding error.

The following passage is may be construed as a warning against this meddling:

“It is certainly possible to weigh parts of the evidence differently than the chambers judge did. The possibility of alternative findings based on different ascriptions of weight is, however, not unusual, and 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” [emphasis added]. (Mowatt, para 38)

Broader Implications

Overall, this case is significant for its pronouncement on the role of appellate courts when treating the weight assigned by lower courts to various pieces of evidence.  Here, the SCC boldly reminded us that appellate courts do not usually perform a fact-finding function and should not disregard the lower court’s weighing of the evidence.

Given that the inconsistent use test was not upheld under BC law, it is possible that the SCC may drift away from inconsistent use authorities and extend a similar fate in other jurisdictions. Therefore, despite the lack of express pronouncement by the SCC, provinces like Ontario and Nova Scotia should keep their ears perked on future treatment of the inconsistent use doctrine.

Further, the case is significant for proving historic claims to interests in land in BC.  Moving away from the inconsistent use test will mean that prospective claimants will have a less onerous task to prove adverse possession.  Therefore, prospective plaintiffs in BC can rest assured they will not be required to demonstrate that their possession was inconsistent with the current or intended use of the titled owner.

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