Federal Court Decisions

     T-1120-88

BETWEEN:

     MARIE WILSON

     Appellant

     (Plaintiff)

     - and -

     SARAH PARKER, PARKER COVE RECREATION LTD. and

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Respondents

     (Defendants)

     REASONS FOR JUDGMENT

ROULEAU, J.

     This is an appeal by the plaintiff from a decision of the Prothonotary dismissing her action against the defendants for want of prosecution.

     In 1980, following the death of her husband, the defendant Sarah Parker obtained a Certificate of Possession of a block of land on Okanagan Lake. In 1986, the land was transferred into joint possession of Mrs. Parker, her son, Wallace Parker, and her daughter, Mildred Bonneau. The family then proceeded to subdivide and develop the land.

     In June of 1988, the plaintiff initiated this action claiming, among other things, that a substantial portion of the Parker subdivision was on her property. The action is based on fence lines of 1920 or 1921 and 1935 and a transfer of reserve land under the Indian Act which occurred in 1960. Mrs. Wilson's claim against the Crown is in negligence for failing to correct a 1959 survey which is alleged to be in error and for registering an incorrect plan. The following paragraphs of the Statement of Claim are crucial to the resolution of the issues raised in this appeal:

6. In the year 1920 the Petitioner's grandfather, Tommy Armstrong, obtained possession of property later described in the Indian Registry as "Okanagan Indian Reserve No. 1, Lot 8, Block "D" and Lot 9, Block "D" parcel 2.

7. Lot 8 Block "D" was allotted to Tommy Armstrong by the Band Council on December 4, 1959, consisting of 22.5 acres Okanagan Indian Reserve No. 1.

8. On December the 4th, 1959, Harry Parker was allotted property described in the Indian Land Registry as "Lot 9, Block "D" comprising 103 acres by the Okanagan Indian Band.

9. In error the Okanagan Indian Band Council allotted property over which Mr. Tommy Armstrong had possession and later described as Lot 9, Parcel 2, Block "D" to a Mr. Harry Parker, the husband of the Defendant Sarah Parker.

10. The boundary between property possessed by Tommy Armstrong and Harry Parker was a fence which went back as far as 1920.

11. On or about December the 6th, 1959 Mr. W.A.S. Barnes drew a sketch plan of Lots 7, 8 and 9 which inaccurately described the Armstrong property.

12. Mr. Barnes based the sketch he drew of Lots 7, 8 and 9 on aerial photographs taken of the subject lands.

13. The allotments to Armstrong and Parker were described according to the inaccurate Barnes sketch.

14. The Barnes sketch was adopted by the department of Indian Affairs but was immediately questioned by the Band Council on the basis that the boundary between the Armstrong property and the Parker property, i.e. the north boundary was incorrectly described.

15. Mr. John Marchand, at that time a member or the Okanagan Indian Band Council, was appointed by the Band to measure and to describe the land in question.

16. Mr. John Marchand described the Northerly boundary between Tommy Armstrong's property and Harry Parker's property as the fence between these two properties.

17. A sketch of the property was prepared by John Marchand and presented to the Okanagan Indian Band Council.

18. The Band Council agreed that Tommy Armstrong owned the property to the north of Whitemans Creek with the Northerly boundary being the fence line between Mr. Parker's property and Mr. Armstrong's property.

19. Superintendent Mr. D. M. Hett of the Department of Indian Affairs, Okanagan Agency, was instructed by the Okanagan Indian Band Council that the correct boundary was the fence between the Armstrong and Parker properties.

20. The Department of Indian Affairs in error or negligently, failed to correct the error that had been made by W.A.S. Barnes and that had been brought to the Department's attention by the Okanagan Indian Band Council and thereby failed to respect the Okanagan Indian Band Council's power under Section 20(1) of the Indian Act R.S.C. 1970 as amended to allot land to individual Band members.

21. The Okanagan Indian Band Council dealt with the mistake by having Harry Parker transfer to Tommy Armstrong the property recognized as Tommy Armstrong's property.

22. The allotment and transfer documents from Harry Parker to Tommy Armstrong were based on the inaccurate boundary described in the Barnes' sketch.

     Examinations for discovery took place in 1989 and 1990. Although development of the Parker subdivision continued, no further action was taken in this matter until April 11, 1996, when a new solicitor for the plaintiff filed a Notice of Intention to Proceed.

     The defendants then brought an application for an order dismissing the plaintiff's action for want of prosecution. By decision dated July 26, 1996, the Prothonotary granted the applications on the grounds that there had been inordinate delay on the plaintiff's part in pursuing her action, that there was no credible excuse for the delay, and that the defendants were likely to be seriously prejudiced by the delay.

     Mrs. Wilson now appeals from that decision on the grounds that the Prothonotary erred in making his decision. In addition, a new argument was raised at the hearing of the appeal which had not been before the Prothonotary. It is submitted that even if the Prothonotary's decision is upheld by this Court, the plaintiff could bring a fresh writ on the same action without being met with a defence under the British Columbia Limitation Act, R.S.B.C., c. 236, that the cause of action is statute-barred. This argument is based on paragraphs 3(3)(a) and (b) of the Limitation Act which provide as follows:

3. (3) A person is not governed by a limitation period and may at any time bring an action:

(a) for possession of land where the person entitled to possession has been dispossessed in circumstances amounting to trespass;

(b) for possession of land by a life tenant or remainderman.

     The plaintiff maintains that these provisions apply to this case. Accordingly, the matter is not subject to any limitation period and the Court should exercise its discretion and allow the matter to proceed to trial.

     After carefully examining the material before me and considering the written and oral arguments presented by counsel, I am satisfied that the appeal should be dismissed. The impugned decision clearly shows that the Prothonotary gave reasonable consideration to all of the relevant evidence, as well as the submissions made by both parties. His thorough and well-reasoned decision also contains an accurate description of the law with respect to dismissal of actions for want of prosecution and correctly applies those principles to the facts before him. It was entirely open to him to come to the conclusion he did, and there is nothing to suggest that he was manifestly wrong or based his decision on a wrong principle. There are no grounds therefore which would warrant this Court's interference.

     Furthermore, I am not at all persuaded by the plaintiff's arguments with respect paragraphs 3(a) and (b) of the British Columbia Limitation Act.      The plaintiff's position is that these provisions are applicable because she is a person entitled to possession of the land who was "dispossessed in circumstances amounting to trespass" and that this claim is now one for possession of land. It is fundamental to her argument that she, or her predecessors in title, were formally allotted or transferred the disputed lands under the Indian Act.

     However, that position is contrary to the case as pleaded in the Statement of Claim. The new allegation, that the lands in question were formally allotted or transferred to Mrs. Wilson or her predecessor in title, Tommy Armstrong, is inconsistent with the admissions which she has made in her pleadings. Paragraphs 7 - 9 and 12 -13 of the Statement of Claim concede that the land was formally allotted to Harry Parker. The plaintiff alleges in paragraphs 9 and 14 that this allotment was in error, a claim which is incongruous with her current allegation that the lands in question were allotted to her predecessor in title, Tommy Armstrong. Paragraph 21 of the claim alleges that the Band Council "dealt with the mistake by having Harry Parker transfer to Tommy Armstrong the property recognized as Tommy Armstrong's property", an allegation which is in dispute but which is, in any event, also in contradiction with the claim that the lands had been allotted to Mrs. Wilson's predecessor in title, Tommy Armstrong.

     Finally, paragraph 22 of the Statement of Claim admits that the disputed lands remained with Harry Parker after the formal transfer of July 26, 1990, but alleges that the transfer was again based on a misdescription, and was in error. According to the plaintiff, thirty five acres rather than four and a half acres, should have been transferred. There is no claim in the pleadings that the lands were somehow "re-allotted" to the plaintiff and that she was therefore a "person entitled to possession" within the meaning of paragraph 3(3)(a) of the Limitation Act.

     In short, the Statement of Claim admits that the land was allotted to Harry Parker and remained with him after the transfer. The nature of the claim made in the pleadings is that the land was misdescribed in the allotment and all subsequent transfers. The plaintiff's present position is altogether discordant with the case as pleaded. In my view, the admission in the pleadings that the original allotments and formal transfer documents left the disputed lands with Harry Parker is dispositive of the issue in this appeal. Mrs. Wilson's claim is quite clearly for rectification, an equitable claim which is subject to the six year limitation period prescribed by subsection 3(4) of the Limitation Act. There is no merit therefore, to the argument that this Court should exercise its discretion, set aside the Prothonotary's decision and allow the matter to proceed to trial.

     For these reasons the plaintiff's appeal is dismissed.

JUDGE

OTTAWA, Ontario

January 14, 1997