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.

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