Case information
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36999
Corporation of the City of Nelson v. Mary Geraldine Mowatt, et al.
(British Columbia) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2017-02-21 | Appeal closed | |
| 2017-02-20 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2017-02-20 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2017-02-17 |
Judgment on the appeal rendered, CJ Mo Ka Wa Ga Côt Br, The appeal from the judgments of the Court of Appeal for British Columbia (Vancouver), Numbers CA42449 and CA42450, 2016 BCCA 113, dated March 10, 2016, heard on October 7, 2016, is allowed. The decisions of the chambers judge are restored. Each party shall bear its own costs in this Court and in the courts below. Allowed, costs in this Court and courts below |
|
| 2016-10-21 | Transcript received, 179 pages | |
| 2016-10-07 | Judgment reserved OR rendered with reasons to follow | |
| 2016-10-07 | Respondent's condensed book, Submitted in Court (14 copies) | Mary Geraldine Mowatt |
| 2016-10-07 | Appellant's condensed book, Submitted in Court (14 copies) | Corporation of the City of Nelson |
| 2016-10-07 |
Hearing of the appeal, 2016-10-07, CJ Mo Ka Wa Ga Côt Br Judgment reserved |
|
| 2016-10-03 | Notice of appearance, Barbara Carmichael and Cory Bargen will be present at the hearing. Ms. Carmichael will present oral pleadings. | Attorney General of British Columbia |
| 2016-10-03 |
Order by, JUSTICE BROWN, Br, FURTHER TO THE ORDER dated September 16, 2016, granting leave to intervene to the Attorney General of British Columbia; IT IS HEREBY FURTHER ORDERED THAT: The said intervener is granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeal. Granted |
|
| 2016-09-29 | Reply factum on appeal, (Letter Form), Completed on: 2016-09-29, (Printed version filed on 2016-09-29) | Mary Geraldine Mowatt |
| 2016-09-28 | Notice of appearance, K. Michael Stephens, Stephanie McHugh and Ryan J.M. Androsoff will be present at the hearing. Mr. Stephens will present oral arguments. | Mary Geraldine Mowatt |
| 2016-09-28 | Supplemental document, (Book Form), Book of Authorities, Completed on: 2016-09-28, (Electronic version filed on 2016-09-28) | Mary Geraldine Mowatt |
| 2016-09-27 | Notice of appearance, Ryan D. W. Dalziel, A. Scott McW. Boucher and Daniel R. Bennett, Q.C. will be present at the hearing. Mr. Dalziel will present oral arguments. | Corporation of the City of Nelson |
| 2016-09-27 | Appeal perfected for hearing | |
| 2016-09-26 | Intervener's book of authorities, (Book Form), Completed on: 2016-09-26, (Electronic version filed on 2016-09-26) | Attorney General of British Columbia |
| 2016-09-26 | Intervener's factum, (Book Form), Completed on: 2016-09-26, (Electronic version filed on 2016-09-26) | Attorney General of British Columbia |
| 2016-09-23 | Respondent's factum, (Book Form), Completed on: 2016-09-27, (Electronic version filed on 2016-09-27) | Mary Geraldine Mowatt |
| 2016-09-23 | Certificate of counsel (attesting to record), (Letter Form), (Electronic version filed on 2016-09-27) | Mary Geraldine Mowatt |
| 2016-09-23 | Respondent's book of authorities, (Book Form), (4 volumes), Completed on: 2016-09-27, (Electronic version filed on 2016-09-27) | Mary Geraldine Mowatt |
| 2016-09-23 | Respondent's record, (Book Form), (4 volumes), Completed on: 2016-09-27, (Electronic version filed on 2016-09-27) | Mary Geraldine Mowatt |
| 2016-09-16 | Order on motion for leave to intervene, (by JUSTICE BROWN) | |
| 2016-09-16 |
Decision on the motion for leave to intervene, Br, UPON APPLICATION by the Attorney General of British Columbia for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene is granted and the said intervener shall be entitled to serve and file a factum not exceeding ten (10) pages in length on or before September 26, 2016. The respondents are permitted to serve and file a single factum not exceeding five (5) pages in reply to the intervention on or before September 29, 2016. The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the intervener. The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by their intervention. Granted |
|
| 2016-09-16 | Submission of motion for leave to intervene, Br | |
| 2016-09-12 | Response to the motion for leave to intervene, Completed on: 2016-09-12 | Mary Geraldine Mowatt |
| 2016-09-12 | Response to the motion for leave to intervene, Completed on: 2016-09-12 | Corporation of the City of Nelson |
| 2016-09-07 | Motion for leave to intervene, (Book Form), Completed on: 2016-09-07, (Electronic version filed on 2016-09-07) | Attorney General of British Columbia |
| 2016-08-31 | Certificate of counsel (attesting to record) | Corporation of the City of Nelson |
| 2016-08-31 | Appellant's book of authorities, (2 volumes), Completed on: 2016-08-31 | Corporation of the City of Nelson |
| 2016-08-31 | Appellant's record, (5 volumes), Completed on: 2016-08-31 | Corporation of the City of Nelson |
| 2016-08-31 | Appellant's factum, Completed on: 2016-08-31 | Corporation of the City of Nelson |
| 2016-08-16 | Notice of hearing sent to parties | |
| 2016-08-10 |
Appeal hearing scheduled, 2016-10-07, (EARLY START 9:00am) Judgment reserved |
|
| 2016-07-20 | Notice of appeal, (Letter Form), amended notice received 2016/07/25, Completed on: 2016-07-20, (Electronic version filed on 2016-07-20) | Corporation of the City of Nelson |
| 2016-07-15 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2016-07-15 | Judgment on leave sent to the parties | |
| 2016-07-14 | Correspondence (sent by the Court) to, all parties by mail, re: filing deadlines fixed by the Registrar. Letter signed by the Registrar. Filing timetable: Notice of Appeal due 7/20/16; Appellant’s documents due 8/31/16; Motion for leave to intervene due 9/7/16; Responses to motions for leave to intervene due 9/12/16; Replies to responses due 9/14/16; Respondents’ documents due 9/23/16. | |
| 2016-07-14 |
Judgment of the Court on the application for leave to appeal, The motion to file a single application for leave to appeal is granted. The motion to expedite the proceedings, abridge time and hold a joint hearing with Ostiguy, et al. v. Allie (36694) is granted. The application for leave to appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA42449 and CA42450, 2016 BCCA 113, dated March 10, 2016, is granted. The schedule for serving and filing materials will be set by the Registrar. Granted |
|
| 2016-07-14 |
Decision on the miscellaneous motion, see judgment on leave application. Granted |
|
| 2016-07-14 |
Decision on motion to expedite the application for leave to appeal, see judgment on leave application. Granted |
|
| 2016-06-22 | Correspondence (sent by the Court) to, Mr. Stephens re: returning correspondence in response to AGBC | |
| 2016-06-22 | Correspondence (sent by the Court) to, Mr. Carmichael re: returning the response filed on behalf of the AGBC | |
| 2016-06-20 | All materials on application for leave submitted to the Judges, CJ Mo Ga | |
| 2016-06-20 | Submission of miscellaneous motion, CJ Mo Ga | |
| 2016-06-20 | Submission of motion to expedite the application for leave to appeal, CJ Mo Ga | |
| 2016-06-08 | Applicant's reply to respondent's argument, (Letter Form), Completed on: 2016-06-08, (Electronic version filed on 2016-06-08) | Corporation of the City of Nelson |
| 2016-05-30 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2016-06-01, (Electronic version filed on 2016-05-30) | Mary Geraldine Mowatt |
| 2016-05-30 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2016-05-30) | Mary Geraldine Mowatt |
| 2016-05-26 | Response to miscellaneous motion, (Letter Form), Completed on: 2016-05-26, (Electronic version filed on 2016-05-26) | Mary Geraldine Mowatt |
| 2016-05-25 | General proceeding, (Letter Form), Formal Order Form | Corporation of the City of Nelson |
| 2016-05-19 | General proceeding, (Letter Form), Change of Agent | Attorney General of British Columbia |
| 2016-05-16 | Reply to motion to expedite the application for leave to appeal, (Letter Form), Completed on: 2016-05-16, (Electronic version filed on 2016-05-16) | Corporation of the City of Nelson |
| 2016-05-16 | Notice of miscellaneous motion, (Book Form), to join , Completed on: 2016-05-25, (Electronic version filed on 2016-05-16) | Corporation of the City of Nelson |
| 2016-05-16 | Response to the motion to expedite the application for leave to appeal, (Letter Form), Completed on: 2016-05-16, (Electronic version filed on 2016-05-16) | Mary Geraldine Mowatt |
| 2016-05-11 | Correspondence (sent by the Court) to, all parties, re: Mr. Gib van Ert has not had and will not have any involvement whatsoever in this file, in his role as Executive Legal Officer at the Court | |
| 2016-05-10 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order, (File open) | |
| 2016-05-06 | Notice of name, (Letter Form), (Electronic version filed on 2016-05-06) | Corporation of the City of Nelson |
| 2016-05-06 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2016-05-06) | Corporation of the City of Nelson |
| 2016-05-06 | Motion to expedite the application for leave to appeal, (Book Form), (Included in the application for leave to appeal), Completed on: 2016-05-06, (Electronic version filed on 2016-05-06) | Corporation of the City of Nelson |
| 2016-05-06 | Application for leave to appeal, (Book Form), CA Orders missing (Order form rec'd 2016-05-25), Completed on: 2016-09-07, (Electronic version filed on 2016-05-06) | Corporation of the City of Nelson |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Corporation of the City of Nelson | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Mowatt, Mary Geraldine | Respondent | Active |
| Mowatt, Earl Wayne | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of British Columbia | Intervener | Active |
Counsel
Party: Corporation of the City of Nelson
Counsel
A. Scott McW Boucher
510 West Georgia Street
Suite 1800
Vancouver, British Columbia
V6B 0M3
Telephone: (604) 641-4881
FAX: (604) 646-2671
Email: ryan.dalziel@nortonrosefulbright.com
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0197
FAX: (613) 563-9869
Email: guy.regimbald@gowlingwlg.com
Party: Mowatt, Mary Geraldine
Counsel
2100 - 1040 West Georgia Street
Suite 2100
Vancouver, British Columbia
V6E 4H1
Telephone: (604) 891-2404
FAX: (604) 647-4554
Email: mstephens@litigationchambers.com
Agent
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: Mowatt, Earl Wayne
Counsel
2100 - 1040 West Georgia Street
Suite 2100
Vancouver, British Columbia
V6E 4H1
Telephone: (604) 891-2404
FAX: (604) 647-4554
Email: mstephens@litigationchambers.com
Agent
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: Attorney General of British Columbia
Counsel
Barbara Carmichael
3rd Floor, 1001 Douglas Street
PO Box 9280 Stn Prov Govrt
Victoria, British Columbia
V8W 9J7
Telephone: (250) 387-6769
FAX: (250) 953-3557
Email: cory.bargen@gov.bc.ca
Agent
World Exchange Plaza
100 Queen Street, suite 1300
Ottawa, Ontario
K1P 1J9
Telephone: (613) 787-3562
FAX: (613) 230-8842
Email: neffendi@blg.com
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Property - Real property - Acquisition of title by way of adverse possession - Does s. 20 of the Land Title Act, R.S.B.C. 1996 c. 250 preclude de Mowatts from asserting title to the Disputed Area? - Is the doctrine of inconsistent use fatal to the Mowatts’ historical adverse possession argument? - Did the Court of Appeal err in substituting its view of whether there was continuous adverse possession for that of Kelleher J.?
Mrs. Mary Geraldine Mowatt and Mr. Earl Wayne Mowatt, the respondents, live at properties bearing the civil addresses 1112 and 1114 Beatty St. in the City of Nelson, Province of British Columbia. They claim to have purchased both lots at the same time in 1992 from the former owner, Ms. Marquis. The Appellant, the City of Nelson, however, took the view that the lot bearing the civil address 1114 Beatty St. is a municipal road allowance and contends that it was escheated to the Crown after the dissolution of the land company that had owned it pursuant s. 3A of the Escheat Act, R.S.B.C. 1924, c. 81, as amended by S.B.C. 1929, c. 23, s. 2 in 1930-31. In the past, the City had directed Mrs. and Mr. Mowatt, and the former owner, to remove their buildings from the lot because it was City land. In order to clarify their title to the land, Mrs. and Mr. Mowatt took a petition seeking a judicial investigation of the disputed lot under the Land Title Inquiry Act, R.S.B.C. 1996, c. 251, a declaration that they were the owners of the lot in fee simple in possession and an order that they had established good, safe-holding and marketable title in fee simple.
Lower court rulings
Supreme Court of British Columbia
S067531, 2014 BCSC 2219
Petition seeking a declaration of title dismissed;
Summary trial application granted.
Court of Appeal for British Columbia (Vancouver)
2016 BCCA 113, CA42449, CA42450
Appeal on petition granted;
Appeal on summary trial application granted.
Memorandums of argument on application for leave to appeal
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Factums on appeal
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If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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