Skip to content

Downey v Nova Scotia: clarifying the process under the Land Titles Clarification Act

Jennifer Taylor

 

The Supreme Court of Nova Scotia has acknowledged the ongoing impact of systemic racism against African Nova Scotians in an important decision on the Land Titles Clarification Act (“LTCA”).

 

The case, Downey v Nova Scotia (Attorney General), involved an application for a certificate of claim under the LTCA, for a property in North Preston. The Applicant had lived on the property since 2001, and it had been in his family since 1913. The Department of Lands and Forestry refused the application in 2019 because the Applicant had not proven 20 years of adverse possession.

 

On judicial review, Justice Jamie Campbell agreed with the Applicant that the adverse possession standard was unreasonable,¹ and contrary to the purpose of the legislation. The LTCA is remedial legislation that “was intended to provide people who live in designated areas with a simpler and less expensive way to clarify title to their property. North Preston is one of those designated areas.”

 

Justice Campbell situated his decision in the context of systemic racism in Nova Scotia:

 

African Nova Scotians have been subjected to racism for hundreds of years in this province. It is embedded within the systems that govern how our society operates. That is a fundamental historical fact and an observation of present reality.

That has real implications for things like land ownership.

 

Section 4 of the LTCA is the provision governing certificates of claim. To issue a certificate of claim, the Minister must be satisfied that “it appears from the application that the applicant is entitled to the lot of land.” As Justice Campbell explained, a “certificate of claim is the first step toward obtaining a certificate of title” to a particular lot of land.

 

Since at least 2015, the Department of Lands and Forestry had required applicants to meet the criteria of adverse possession (20 years of “open, notorious, adverse, exclusive, peaceful, actual, and continuous” possession) before they could obtain a certificate of claim — and have any hope of obtaining a certificate of title. In other words, the Department treated adverse possession as a “condition precedent” to a certificate of claim.

 

The Court found the Department’s approach to be unreasonable in several ways.

 

First, there is no mention of “adverse possession” in the LTCA. While the Minister, and the decision makers in his department, have a certain amount of discretion under the LTCA, their discretion is not unlimited and does not extend to applying a test that would defeat the remedial purpose of the legislation.² As Justice Campbell stated: “A test cannot be deemed reasonable simply because an administrative decision maker has consistently applied a factor that was not mandated by the legislation as a condition precedent.”

 

Importantly, Justice Campbell recognized that, while a history of possession will help an applicant show entitlement to the land, “requiring adverse possession would be inconsistent with the purposes of the Land Titles Clarification Act.” This is because:

 

Adverse possession is a concept that acts to prevent a person from being displaced by the legal title owner of the land. The person in possession is necessarily not the holder of that legal title, otherwise the possession would not be adverse. The Land Titles Clarification Act is intended to clarify title to land of which the applicant claims to be the real owner.

 

Justice Campbell relied on the recent case of Beals v Nova Scotia (Attorney General), where Justice Bodurtha reviewed in detail the history and context of the LTCA — including these key facts:

 

  • Many individuals of African descent who migrated to Nova Scotia during the late 18th and early 19th centuries experienced racism and discrimination upon arrival and after.
  • While the government of Nova Scotia often provided white settlers with 100 acres or more of fertile land, it gave black families ten-acre lots of rocky, infertile soil. The land given to black families was segregated from that given to white families.
  • The government of Nova Scotia gave white settlers deeds to their land but did not give black settlers title to their land. Instead, black settlers were given tickets of location or licenses of occupation.
  • Although a limited number of land titles were eventually issued in Preston, and some settlers were able to purchase land, most black settlers never attained clear title to their land.
  • Without legal title to their land, black settlers could not sell or mortgage their property, or legally pass it down to their descendants upon their death.
  • Lack of clear title and the segregated nature of their land triggered a cycle of poverty for black families that persisted for generations.

 

As Justice Campbell put it, the LTCA “was intended to help in redressing that historical wrong.” Against this backdrop, Justice Campbell sent the application back to the Minister for reconsideration, without requiring the Applicant to “prove 20 years of adverse possession.”

 

Downey will hopefully make it easier for other claimants to bring successful LTCA applications, now that the Court has clarified that the adverse possession standard is unreasonable and inapplicable.

 

Stewart McKelvey lawyers Scott Campbell and Kathleen Mitchell represented the Applicant in this matter.


¹ Applying Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

² See Chaffey v Her Majesty the Queen in Right of Newfoundland and Labrador, 2020 NLSC 56.


This update is intended for general information only. If you have questions about the above, please contact Jennifer Taylor, Scott Campbell or Kathleen Mitchell.

Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.

SHARE

Archive

Search Archive


Generic filters

 
 

New Brunswick’s new Enduring Powers of Attorney Act

August 10, 2020

Gerald McMackin, QC and Christopher Marr, TEP New Brunswick joined the rest of Canada in enacting legislation that deals solely with powers of attorney when the Enduring Powers of Attorney Act (“Act”) came into force…

Read More

COVID-19 immigration update

August 5, 2020

*Last updated: August 5, 2020 (Originally published April 1, 2020) Kathleen Leighton Due to the COVID-19 pandemic, there are various implications for the immigration world, including for those already in Canada, as well as those…

Read More

Prince Edward Island Labour and Employment legislative changes

July 31, 2020

Murray Murphy, QC, CPHR and Kate Jurgens Three new bills have been introduced in the most recent sitting of the Prince Edward Island legislature. In the employment setting Bill 38 aims to address the prevalence…

Read More

Game over for waiver of tort

July 27, 2020

Jennifer Taylor   The Supreme Court of Canada has finally put an end to the “waiver of tort” debate.   After years of uncertainty, a majority of the Court confirmed in Atlantic Lottery Corp Inc…

Read More

COVID-19 – potential liability for municipalities

July 21, 2020

Stephen Penney and Justin Hewitt As municipalities begin opening up recreational facilities in Alert Level 2 of the COVID-19 public health emergency implemented by the Provincial Government, Municipalities Newfoundland and Labrador has been receiving inquiries…

Read More

Applicability of business tax where operations limited

July 21, 2020

There is no obligation upon a municipality to reduce a business tax due to limited operations secondary to the COVID-19 pandemic. A municipality does, however, have the discretion to offer business tax relief. If a…

Read More

You’re more essential than you think: it is crunch time for Newfoundland and Labrador employers to avail of Essential Worker Support Program

July 9, 2020

Ruth Trask and John Samms Newfoundland and Labrador employers who continued operations this spring during Alert Levels 4 and 5 of the COVID-19 pandemic should take note of a new program offered by the provincial…

Read More

New Brunswick regulator seeks input on changes to defined benefit pension plan funding

July 8, 2020

Christopher Marr, TEP & Lauren Henderson As defined benefit pension plans (“DB Plans”) throughout Canada continue to face funding challenges due to mounting solvency deficits, the New Brunswick Financial and Consumer Services Commission (“FCNB”) is…

Read More

Downey v Nova Scotia: clarifying the process under the Land Titles Clarification Act

July 8, 2020

Jennifer Taylor   The Supreme Court of Nova Scotia has acknowledged the ongoing impact of systemic racism against African Nova Scotians in an important decision on the Land Titles Clarification Act (“LTCA”).   The case,…

Read More

Entry of business persons to Canada under CUSMA

July 3, 2020

Effective July 1, 2020, the North American Free Trade Agreement (“NAFTA”) was officially replaced by the Canada-United States-Mexico Agreement (“CUSMA”). Like NAFTA, CUSMA contains provisions for the temporary entry of foreign “business persons” to Canada…

Read More

Search Archive


Generic filters

Scroll To Top