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

 
 

Travelling to visit a cottage or summer home in Canada during COVID-19

June 15, 2020

  Kathleen Leighton Those who have vacation homes or cottages in Canada may be starting to form their summer plans as temperatures begin to rise. However, the ongoing pandemic has resulted in a host of…

Read More

Taking stock: Quick reference guide for government initiatives

June 5, 2020

*Flowchart below last updated June 2, 2020 (Originally published April 14, 2020) Dante Manna With the passing of Bill C-14, the COVID-19 Emergency Response Act, No. 2 on April 11, 2020, the federal government has…

Read More

Proposed extension of time limits under various legislation may create significant disruption to foreign investments

May 29, 2020

Burtley Francis Recently, the Government published for public comment draft legislation referred to as the Time Limits and Other Periods Act (COVID-19). The underlying purpose of the draft legislation, which was published on May 20,…

Read More

Nova Scotia announces plan to re-open economy, new funding

May 27, 2020

Mark Tector and Katharine Mack The province of Nova Scotia announced today that most sectors of the economy may begin to reopen. Provincial grant funding was also announced to help businesses open safely, as well as…

Read More

The Canada Emergency Commercial Rent Assistance program: COVID-19 economic response

May 21, 2020

Brian Tabor, QC, Ryan Baker, and Madeleine Coats On April 16, 2020, Prime Minister Justin Trudeau announced the beginning of a new piece to the COVID-19 federal economic response package – this time, in the…

Read More

COVID-19 FAQ & Checklist

May 21, 2020

Chad Sullivan and Clarence Bennett As many employers resume operations during the ongoing pandemic, we have prepared a list of FAQs and a reopening checklist for businesses operating in Atlantic Canada. Do employers need to…

Read More

Expert insights during COVID-19: an English viewpoint

May 20, 2020

Daniela Bassan, QC Using its COVID-19 Protocol, the English Technology and Construction Court (TCC) handed down remotely a decision about the role of experts in international arbitration and how multiple retainers by a global firm…

Read More

“Won’t somebody please think of the children?”: Family status accommodation for employers during COVID-19

May 15, 2020

Ruth Trask On a typical, “normal” day in many Canadian households, adults leave home to go to work, and kids attend school or perhaps daycare. As we keep hearing, though, these are far from “normal”…

Read More

Federal Court of Appeal confirms CRA deemed trust priority for unremitted HST – mortgage lenders beware

May 14, 2020

Maurice Chiasson, QC The Federal Court of Appeal released its decision in The Toronto-Dominion Bank v. Her Majesty the Queen on Apr. 29, 20201. This decision confirms the earlier ruling of the Federal Court in…

Read More

New Brunswick employers returning to the new normal – what’s your plan?

May 13, 2020

Clarence Bennett and Chad Sullivan The May 8, 2020 announcement On Friday, May 8, 2020, the New Brunswick Government made a significant announcement that the province was moving into the second phase of NB’s four…

Read More

Search Archive


Generic filters

Scroll To Top