Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION Citation: Attorney General (PEI) v. Thompson et al PESCAD 18 Date: Docket: S1-AD-0957 Registry: Charlottetown BETWEEN: AND: ATTORNEY GENERAL OF PRINCE EDWARD ISLAND APPELLANT DONALD THOMPSON, HEATHER THOMPSON, IVAN BOSWALL, AND LUCILLE BOSWALL RESPONDENTS Before: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber Appearances: Ruth M. DeMone, counsel for the Appellant John R. Diamond, counsel for the Respondents Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island April 1, 2003 Charlottetown, Prince Edward Island June 23, 2003 Written Reasons by: The Honourable Madam Justice L.K. Webber Concurred in by: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid

2 Page: 2 Declaration - Rights-of-way The Fences and Detention of Stray Livestock Act, R.S.P.E.I. 1988, Cap. F- 7 places the onus on livestock farmers to fence their property to prevent livestock from straying upon adjacent property. The vague provisions of the Trails Act do not amend the Fences Act. The responsibility for fencing to prevent livestock from straying rests with the respondent livestock farmers. A farm crossing right is a right-of-way allowing crossing without impediment. Such right-of-way does not normally require positive actions such as gating by the party who granted the right-of-way. Authorities Cited: CASES CONSIDERED: Killam et al. v. Manuge et al. (1971), 21 D.L.R. (3d) 171 (N.S.S.C., A.D.) aff d 32 D.L.R. (3d) 49 (SCC); Canada Southern Railway Co. v. Clouse (1886), 13 S.C.R. 139 (SCC); STATUTES CONSIDERED: Fences and Detention of Stray Livestock Act R.S.P.E.I. 1988, Cap. F-7; Trails Act R.S.P.E.I. 1988, Cap. T-4.1, s. 5, s.7, s-s.8(2); Railway Act R.S.C. 1985, c. R-3 TEXTS REFERRED TO: Côté Pierre-André: The Interpretation of Legislation in Canada (3 rd Ed.) (Carswell 2000) Reasons for judgment: WEBBER J.A.: [1] The respondents sought from the trial division a declaratory order setting out the rights and responsibilities of the parties with respect to the operation and maintenance of the Confederation Trail ( the Trail ), essentially a linear park that runs through the property of the respondents, as this affects their adjacent properties. They also sought a similar declaration with respect to farm crossings and adjacent lands. They received an order containing the following declarations: THIS COURT DECLARES that, under the agreement of purchase and sale dated on or about April 25, 1994, the Province of Prince Edward Island did not assume CN s obligation regarding fencing under the Railway Act, S.C. 1984, c.r-2, as this obligation ceased when CN ceased to operate a railroad;

3 Page: 3 THIS COURT FURTHER DECLARES that it is in keeping with the principles of s. 7(c) of the Trails Act, R.S.P.E.I. 1988, Cap. T-4.1 and the practice of the Defendant that the Defendant continue to fence those portions of the Confederation Trail which border the Plaintiffs farms, such fences to be built and maintained to the standards set out in the Regulations to the Fences and Detention of Stray Livestock Act, R.S.P.E.I. 1988, Cap. F-7; THIS COURT FURTHER DECLARES that the Defendant provide convenient and proper farm crossings across the Confederation Trail including building gates wide enough for modern farm machinery, maintaining culverts to prevent run off or buildup of water onto adjacent property and maintaining crossing at an appropriate level so they can be used for the movement of cattle and farm equipment without difficulty; THIS COURT FURTHER DECLARES that it is the responsibility of the Defendant, under the Trails Act, supra, to operate the Confederation Trail in such a way as not to interfere with the needs and uses of adjacent lands of the Plaintiff; and THIS COURT FURTHER DECLARES that the Plaintiffs, while they have the right to utilize farm crossings, must do so in a responsible manner and cannot use the Confederation Trail as an extension of their farming operations. [2] The appellant appeals from the portions of the declaratory order that state that the appellant has the obligation to fence the Trail where it intersects the respondents property and has the obligation to provide convenient and proper farm crossings, including building gates and maintaining the crossings at an appropriate level for crossing by farm animals and equipment. DISPOSITION [3] I would allow the appeal. ANALYSIS [4] A declaration as to the rights of the parties with respect to the general supervision, operation and maintenance of the trail and farm crossings, as these relate to adjacent lands, requires a consideration and interpretation of the Trails Act, R.S.P.E.I. 1988, Cap. T-4.1, the Fences Act and Detention of Stray Livestock, R.S.P.E.I. 1988, Cap. F-7 (The Fences Act ) and the terms of the agreement by which the provincial government purchased the property in issue. These matters of contractual and statutory interpretation are questions of law reviewable by the court on a standard of correctness. [5] The Trails Act sets out certain guidelines:

4 Page: 4 5.(1) The Minister is responsible for the general supervision, construction, administration, operation and maintenance of the trail. (2) Notwithstanding subsection (1), the Minister may appoint as his or her agent a trail manager to manage the trail in accordance with the management principles set out in section The trail manager shall manage the trail with respect for the following principles: (a) sustainable use of the trail as a public resource; (b) respect for, and enhancement of the unique quality of life in the province; (c) recognition of the needs and circumstances of properties adjacent to the trail and neighbouring communities (2) The Minister may, by notice, determine the recreational uses or activities permitted on the trail or part thereof. [6] Section 7 is referred to by the parties as providing the clearest direction with respect to the issues before the Court. However, this provision is itself vague. What does it mean for the Trail manager to act with respect for the principle of recognition of the needs and circumstances of properties adjacent to the Trail and neighbouring communities? [7] The first litigation involving these parties occurred in the fall of Unfortunately, in the intervening years the problems identified then have not been addressed in any systematic manner. The appellant has taken some fencing and gating actions that did not satisfy the respondents. In turn, in this action the respondents sought a declaration from the court of the rights of the parties as relating to the general supervision, operation and maintenance of the Trail, the farm crossings and adjacent lands... [8] While declarations containing some broad parameters of responsibility can be, and have been, issued, these declarations cannot address all of the potential issues between the parties and the many ways in which the adjacent lands of the parties could come into conflict. [9] By s.7 of the Trails Act the appellant has expressed a commitment that can be

5 Page: 5 interpreted to mean it will take measures to ensure that trail users don t trespass and that adjacent farmers operations won t be disturbed. However, there is no declaration from the court that can clarify the meaning of that commitment for all fact situations. Snowmobile use differs from walking use; bird-watching differs from hunting. Each situation may require a unique response from one or both parties. [10] The respondents were successful at trial in arguing that the vague statutory statements meant that there were positive obligations on the province to fence the Trail, especially for them, and to provide farm crossings that met their needs. [11] In support of this interpretation, the trial judge referred to the agreement of purchase and sale document between CNR and the province. In particular: 5. PRIOR ENCUMBRANCES The Parties agree that the conveyance of title to the Minister shall be subject to prior encumbrances by way of CN leases, CN licenses, CN approval letters, farm or private crossings, or other permitted uses. 6. ASSIGNMENT CN shall on the Date of Closing assign to the Minister all of CN s right, title and interest, together with all responsibilities and related obligations in respect of CN leases, CN licenses, and CN approval letters, as shown in Schedule B hereto, together with farm and private crossings, and other uses whether permitted or otherwise, of the lands, together with all benefits and obligations related thereto occurring or arising thereafter. [Emphasis added] [12] This reference to farm crossings together with all benefits and obligations related thereto occurring or arising thereafter was stated at trial to have somehow transferred to the provincial government the obligations of CNR with respect to fencing and farm crossings during the time it operated the railway. However, this document does nothing to define the nature of the obligations that might have been transferred. It is simply a statement that the province takes the property subject to whatever obligations there may be, if any. [13] The trial judge found that CNR s specific obligations with respect to farm crossings and fences were actually set out in the Railway Act R.S.C. 1985, c. R-3. She further found a finding which was not challenged on appeal -- that the province was not bound by these obligations because at the time the agreement of purchase and sale was signed in 1994, CNR was no longer subject to those provisions of the Railway Act. Those obligations ceased when

6 Page: 6 CNR abandoned the railways in [14] As a result, in 1994 when the province agreed to assume all responsibilities and related obligations with respect to these lands, I can find no evidence that any specific fencing or farm crossing responsibilities and related obligations existed at that time. Once the trial judge found that the responsibilities under the Railway Act were not being assumed by the province, those provisions in the agreement of purchase and sale were rendered effectively meaningless and of no support to the respondents claims. This leaves the Trails Act as the sole foundation for the respondents claims regarding fencing and farm crossings. (a) Fences [15] The appellant argues against the trial judge s interpretation of fencing responsibilities under the Trails Act on the basis that fencing issues for livestock farmers are specifically dealt with under the Fences and Stray Livestock Act, supra. The appellant relies upon the rule that states that general laws do not derogate from special ones. In return, the respondents cite the rule that states the more recent law takes precedence. [16] In his text, The Interpretation of Legislation in Canada (3 rd Ed.) (Carswell 2000), Pierre-André Côté states at p.359: In principle, the more recent statute takes precedence. But like every rule, this one has an exception. A more recent, general provision will not be construed as affecting an earlier, special provision: generalia specialibus non derogant. Here is a typical justification of this practice: When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. The priority granted to earlier special legislation over more recent general provisions can also be viewed as an application of the rule of effectivity. By giving priority to the special provisions, the two laws each produce an effect. The earlier one continues to deal with the special situations for which it was adopted, while the more recent, general law applies in all other cases. [17] In addition, both the above maxims are only applicable where there is found to be an inconsistency between the laws in question. In the instant case, the Fences Act and the Trails Act do not, on their face, deal with the same subject matter. As Côté notes, even statutes dealing with the same subject are not necessarily inconsistent. There is a presumption against

7 Page: 7 inconsistency and against implied repeal of one statute by another. As stated by Côté at pp.351-2: Two statutes on the same subject are presumed to complement rather than contradict each other, so as to avoid implicit repeal of one by the other Two statutes are considered inconsistent, and one is eventually deemed to repeal the other by implication,... if, but only if, it is so inconsistent with or repugnant to the other that the two are incapable of standing together. [Halsbury s Laws of England, 3 rd ed., Vol. 36, p.466] [18] And at pp : Because the legislature is presumed consistent, any apparent repugnancy should be avoided by reconciling the two enactments whenever possible: When there are two legislative enactments which at first sight appear to conflict with each other, the courts, quite apart from any constitutional aspect, must try to reconcile them before giving priority to the more recent enactment, and giving it the effect of a total or partial implicit repeal of the older provision. Most often, this is done by giving to both enactments a distinct scope or ambit, so that each produces effect without contradicting the other. In Gladysz v. Gross, the Pound District Act which held the owner of an animal liable for any damages it caused while wandering in a pound district, was apparently inconsistent with the Trespass Act, which held liable the owner of the damaged property, unless he had built a fence according to the Act s requirements. The court, allowing each statute its own distinct field of application, said the Trespass Act applied only outside pound districts. [19] I can see no inconsistency between the Trails Act and the Fences Act. The distinct ambit of the Fences Act is to deal with situations involving livestock farmers and their neighbors, with the intention of preventing livestock from straying from those farms. The Trails Act has a different purpose and can exist in a complementary fashion with the Fences Act. [20] I therefore must agree with the appellant that the trial judge erred in her interpretation of the Trails Act as placing a primary onus on the appellant to fence the respondents property where it intersected the Trail. There can be no doubt that the clear intent of the Fences Act is to deal with fencing issues where farms with livestock abut other property. The responsibility is placed directly upon farmers with livestock to ensure that fencing is put in place to prevent livestock from straying off the farmers property. A provision of the Act requires an adjacent

8 Page: 8 landowner to contribute one-half of the cost of the materials required for the fencing, but nothing else. An independent person (the fence viewer) is established to adjudicate disputes arising under the Act, e.g. what is really needed for a proper fence in any particular case. [21] While it is true that the Confederation Trail did not exist at the time the Fences Act was passed, it is also true that no changes were made to that Act when the Trails Act became law. The vague generalizations in s.7 of the Trails Act do not amend the specific provisions of the Fences Act or any of the responsibilities placed by the Fences Act on livestock farmers. [22] The evidence produced at trial that the province had, in fact, put up fencing along the boundary between the Trail and the respondents property was used to support the position that the province had a legal obligation to put up the fencing. The province denies any obligation, stating that what it had done was simply a voluntary act of good will. [23] Even if the province s agents had put up the fence believing they were required to do so, that would not decide the province s responsibility under the Trails Act. Just as the province s refusal to act does not mean it has no responsibility to act, so too, the province s willingness to act does not mean there is a corresponding obligation to do so. [24] This is not to say that pursuant to s.7 of the Trails Act there may not be situations in which there is an obligation on the province to fence the Trail. The vagueness of the wording of that Act precludes any general rule one way or the other. Were it not for the existence of the Fences Act, an argument might well be made that for the safety of the Trail users as well as liability issues for adjacent owners, a fence must be put up by the provincial government where the Trail runs through a livestock farm. However, since there already exists a piece of legislation that specifically deals with livestock farms adjoining anyone in the world, that argument can t be made. This does not absolve the appellant from the responsibilities set out in s.7 of the Trails Act, and those responsibilities may include some additional fencing where the safety of trail users requires more than is required by the Fences Act. [25] However, the provisions of the Fences Act place the primary responsibility for fencing the property of the respondents, where it abuts the Trail, on the respondents in order to prevent the respondents livestock from straying upon adjacent trail lands. If parts of the respondents lands are not used for livestock farming, there is no issue of livestock straying onto trail lands and so no requirement on the respondents to fence those lands. (b) Farm Crossings [26] With respect to farm crossings, the appellant argues that there is no basis for the trial judge s findings with respect to a positive obligation on the government to provide gates and

9 Page: 9 otherwise make the crossings suitable for farm use. Again, evidence of what CNR used to do was cited as indicating the obligations assumed by the province when it took the property from CNR together with farm and private crossings or subject to prior encumbrances by way of... farm or private crossings. [27] The case law relevant to farm crossings states consistently that, unless altered by statute or specifically agreed to by contract, a farm crossing right is simply a legal right of way over the property in question. You may cross, but how you are to do it safely is your problem. [28] In the case of Killam et al. v. Manuge et al. (1971), 21 D.L.R. (3d) 171 (N.S.S.C., A.D.), Cooper J.A. writing for the majority found that although the railway treated the crossing in question as a farm crossing, it was in fact a private crossing. That case involved an action against the railway company for damages for personal injuries after a vehicle was struck by a train at a farm or private railway crossing leading to the plaintiff s house. Growth along the side of the railway right-of-way almost completely obstructed the view in the direction from which the train approached. The plaintiff claimed the railway had an obligation to clear this growth so as to provide adequate visibility for anyone using the crossing. Cooper J.A. stated at p.182: The question resolves itself into whether or not there was an obligation on the railway company when it installed the crossing or subsequently to ensure that those for whose use it had been installed had adequate visibility and, specifically, under the facts in the case at bar, adequate northern visibility at the western approach to the crossing. And at p.184: The significant fact is that there is nothing in the Railway Act imposing any obligation or duty on railway companies for maintenance of adequate visibility at either farm or private crossings. If, therefore, there is such an obligation or duty, it must arise under the common law. [29] He then reviews other cases alleging negligence by railways either in the operation of their railway or in the care taken of the property surrounding farm or private crossings and states at pp : In Bender v. Canada Southern R. Co. (1875), 37 U.C.Q.B. 25, Wilson J., delivering the judgment of the Court, said at p.30: The farm crossing is an easement, or right of way, or passage, which the occupier of the farm, has, for the purposes of his farm, over the soil of the railway company contained within the limits of the crossing.

10 Page: 10 In my opinion the same is true of a private crossing. It is stated in Halsbury s Laws of England, 3 rd ed., vol. 12, p.579, para.1256: As a general rule the owner of the servient tenement is under no liability to repair the way over which a right of way has been granted, for such a liability is not a condition incident by law to the grant of a right of way; nor is it even a legal obligation incumbent on the grantee. The person entitled to the use of the way must do such repairs as he requires, and he has a right of entry upon the servient tenement for that purpose. The right of repair is not limited to making good the defects in the original soil by subsidence or other natural causes, but includes the right of making the road reasonably fit for the purpose for which it was granted. The servient owner is not prevented from doing acts on his land the result of which may be to render the repair of the way more expensive. [30] He concludes at p.192: In the result, therefore, I am of the opinion that the railway company was under no duty to Mr. and Mrs. Manuge nor to Mr. Killam with respect to the maintenance of adequate visibility at the Killam Crossing. In having come to this conclusion I have taken into account the fact that the railway company had done some cleaning of ditches in the spring of 1967 and the evidence to which I have referred with respect to dirt having been placed on the embankment. The Killam Crossing was a private crossing. The right to pass and repass over it was a mere privilege to be exercised at the risk of those using it. Mr. Killam, members of his household and all others having the right to pass and repass over the crossing had to take the crossing as they found it and there was no obligation on the railway company as to visibility. I am also of the view that the railway company had the right to do what clearing or ditching within its right of way it deemed necessary and to dispose of the soil as was done.... [31] The view articulated here is one that reflects the general law regarding easements and the case law involving railways and farm crossings. While a grant of an easement by deed may by its terms include an obligation on the servient tenement (here the appellant) to maintain the easement, there is no evidence of any such grant in the instant case. The respondent appears to rely upon the fact that the railway carried out this maintenance and the fact that the Railway Act had imposed some obligation with respect to maintenance. However, there is no legal basis for the assertion that a successor in title, encumbered by an easement, has a positive obligation with respect to that easement unless such positive obligation is written into the original grant of easement.

11 Page: 11 [32] The case of Canada Southern Railway Co. v. Clouse (1886), 13 S.C.R. 139, indicates the strictness of this view. There a landholder from whom lands were taken for a railway had a verbal agreement with the railway, through its agent, for five farm crossings on special terms. The landholder wanted this agreement reduced to writing but was assured that the law would compel the company to build and maintain the required crossings. After a few years the railway decided not to continue with some of the agreed upon crossings and the Supreme Court of Canada found the landholder had no enforceable right for the specific terms he had thought were agreed upon. The statute law was the limit of his right. [33] In the instant case, the gating obligation of CNR was set out in the Railway Act. The trial judge found the Railway Act no longer applied to even CNR in 1994 because by then the railway had been abandoned in Prince Edward Island. The end result must be that there were no identifiable positive obligations existing in 1994 that the province was taking on when it purchased the old railway property. [34] The evidence at trial was that the province had put in gates at its own expense. The respondents felt these weren t good enough and more grading and other work was needed to make the crossing more convenient for farm crossing purposes. [35] However, the only legal obligation upon the appellant is to allow the respondents to cross the Trail. Since the Fences Act requires the respondents as livestock farmers to fence their property where it abuts the Trail, the respondents will also have to put in gates of their own at farm crossings if they want to make use of those crossings. [36] Once again, this does not lessen the general responsibility of the appellant under s.7 of the Trails Act. In a general sense, this obligation on the respondents to provide for their own crossings necessarily includes some responsibility on the part of the appellant in a practical way not to take actions that will impede or interfere with this crossing right, as stated in the fourth declaration made at trial. Grading that is too steep or lands washed out for lack of proper culverts might be classed as impediments of this type. Unfortunately, each situation will need to be assessed individually. CONCLUSION [37] The appeal is allowed as follows: a. As to the second declaration, this court declares that the primary responsibility for fencing the plaintiffs /respondents property where it abuts the property of the defendant/appellant lies with the plaintiffs/respondents in accordance with the provision of the Fences and Detention of Stray Livestock Act, R.S.P.E.I.

12 Page: , Cap. F-7; b. As to the third declaration, this court declares that with respect to farm crossings, the defendant/appellant is required to allow the plaintiffs/respondents free and unimpeded access to those portions of the Trail over which the plaintiffs/respondents hold farm crossing rights; the requirement to provide free and unimpeded access to farm crossings does not include any positive obligation to gate or take other actions to enhance the ability of the plaintiffs/respondents to utilize these rights-of-way. COSTS [38] The appellant has requested its costs on this appeal. However, the circumstances of this litigation must be taken into consideration. [39] In this case the confusion about the rights and responsibilities of the parties stems from the former use of the trail lands as railway lands. When these lands were used for railway purposes their maintenance was a railway responsibility, enforced by statute. The province took over those lands together with CN responsibilities and obligations and subject to farm crossings. Given this wording of the agreement of purchase and sale, it was not unreasonable for the respondents to seek a clarification from the court when the appellant refused to maintain the lands as the railway had maintained them. The vague wording of the Trails Act particularly s.7 did nothing to assist the respondents in trying to assess who was responsible for what. In these circumstances, I find it appropriate for each party to bear its own costs, both here and at trial. The Honourable Madam Justice L.K. Webber I AGREE: The Honourable Chief Justice G.E. Mitchell I AGREE: The Honourable Mr. Justice J.A. McQuaid