Ostiguy v. Allie

Ostiguy v. Allie
Collection
Supreme Court Judgments
Date
2017-04-06
Neutral citation
2017 SCC 22
Report
[2017] 1 SCR 402
Case number
36694
Judges
McLachlin, Beverley; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Quebec
Notes
SCC Case Information: 36694
Decision Content
SUPREME COURT OF CANADA
Citation: Ostiguy v. Allie, 2017 SCC 22, [2017] 1 S.C.R. 402
Appeal Heard: October 7, 2016
Judgment Rendered: April 6, 2017
Docket: 36694
Between:
Alain Ostiguy and
Valérie Savard
Appellants
and
Hélène Allie
Respondent
Official English Translation: Reasons of Gascon J.
Coram: McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 96)
Gascon J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Brown JJ. concurring)
Dissenting Reasons:
(paras. 97 to 164)
Côté J.
Ostiguy v. Allie, 2017 SCC 22, [2017] 1 S.C.R. 402
Alain Ostiguy and
Valérie Savard Appellants
v.
Hélène Allie Respondent
Indexed as: Ostiguy v. Allie
2017 SCC 22
File No.: 36694.
2016: October 7; 2017: April 6.
Present: McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for quebec
Prescription — Acquisitive prescription — Immovables — Publication of rights — Effective possession of parking space on neighbouring lot for more than 10 years — Application by new owners for injunction to stop possessor from parking on their property being dismissed by Superior Court and Court of Appeal — Provision of Civil Code stating that person who has possessed immovable as its owner for 10 years “may acquire the ownership of it only upon a judicial application” — Whether right of ownership acquired by prescription that has not been subject of judicial application may be set up against new owner of immovable who has registered title in land register — Respective roles of acquisitive prescription and publication of rights system in Quebec civil law — Nature of judgment resulting from application for judicial recognition of right of ownership acquired by prescription — Civil Code of Québec, arts. 922, 2910, 2918.
Between 1994 and 2011, A and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and there was no objection to their doing so. Between 2004 and 2011, after 10‑year prescription had been acquired, A nevertheless did not bring legal proceedings to have her right recognized. In 2011, O and S purchased this neighbouring lot by act of sale. A few months after taking possession of their property, they applied for an injunction to stop A from parking on it. A replied by arguing that she had acquired the parking spaces by 10‑year prescription and that that acquisition took precedence over the title of O and S that was registered in the land register.
The Superior Court agreed with A in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed. In the Court of Appeal, the majority dismissed the appeal, concluding that the legislature had not, in enacting art. 2918 of the Civil Code of Québec (“C.C.Q.”), intended to change the principles that applied to acquisitive prescription at the time of its enactment. They observed that acquisitive prescription makes it possible to prove the existence of a right of ownership, whereas the role of land registration is not that of a guarantee of title. A’s possession could be set up against an owner whose title was registered in the land register. The dissenting judge, on the other hand, would have allowed the appeal and confirmed the title of O and S. He argued that the right to prescribe acquired by A in 2004 is distinct from the real right she was seeking, which can be obtained only upon a judicial application under art. 2918 C.C.Q. In his opinion, the judgment resulting from that application is an essential condition for acquiring ownership by prescription. A thus had to obtain such a judgment and publish her right to be able to set it up against O and S.
Held (Côté J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: The parties on each side in this case have a legitimate right to assert. O and S acquired their title legally, by act of sale. A’s effective possession of one of the parking spaces on her neighbours’ lot is recognized and is just as legitimate. What must be done in order to determine which of the parties should prevail is to define the respective roles of acquisitive prescription and the publication of rights in Quebec civil law, and then to interpret and apply the relevant provisions of the C.C.Q., taking into account its overall scheme and its consistency.
In the C.C.Q., acquisitive prescription is recognized as a “means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession” (art. 2910 C.C.Q.). The possessor must prove that, for at least 10 years in the case of an immovable, he or she in fact exercised the right in question with the intention of exercising it as the holder of the right. His or her possession must be “peaceful, continuous, public and unequivocal” in order to produce effects (art. 922 C.C.Q.). A possessor claiming ownership of an immovable must also obtain a judgment confirming the right so acquired.
As for the role of the publication of rights, it did not change significantly with the enactment of the C.C.Q. Although the Civil Code Revision Office had initially, in 1977, proposed a substantial modification in procedures and in the consequences of the publication of immoveable rights that was based on the cardinal principle of absolute confidence in titles, the Quebec legislature did not carry the reform through to completion. In fact, it abandoned the reform in 2000, confirming the traditional purely declarative role of publication. This decision to abandon most of the reform of the land register confirms that under the current C.C.Q., for rights acquired by prescription to be set up against third parties, there is no greater requirement that they be published than was the case under the Civil Code of Lower Canada (“C.C.L.C.”).
Thus, it can be seen that the effect of the distinct roles of acquisitive prescription and the publication of rights is that rights validly acquired by prescription apply regardless of the rights registered in the land register. This solution is the one that is most consistent with the general scheme of the C.C.Q. and with the relevant provisions on prescription, as well as on the publication of rights and on sale.
This solution is consistent with art. 2885 C.C.Q., which requires the publication of a renunciation of acquired prescription with respect to immovable real rights. Given that acquired prescription jeopardizes a right that is registered in the land register, a renunciation thereof must be published to enable third parties to take notice of it. The solution is also consistent with art. 2957 C.C.Q., which provides that “[p]ublication does not interrupt prescription”. It would indeed make no sense to conclude that the publication of rights cannot interrupt prescription while the period is still running, but that it can negate the effects of prescription that has already been acquired.
This solution is also consistent with the repeal of art. 2962 C.C.Q., the effect of which was that third parties could no longer rely entirely on entries in the land register. As for the theory of apparent rights, there is nothing to suggest that the legislature intended it to apply more generally in situations other than the ones in which the legislature decided to specifically recognize it. In any event, if it did apply, there would be no reason why appearances of right created artificially by the land register should prevail over the tangible appearances of right that result from effective possession. Finally, this solution is just as consistent with art. 1724 para. 2 C.C.Q., which preserves the rights of all parties. Under that provision, the seller warrants the buyer “against any encroachment commenced with his knowledge by a third person before the sale”. Thus, although it is true that in this case the acquisitive prescription A has set up against O and S denies them a portion of the right of ownership that the act of sale purported to transfer to them, it is nevertheless possible for them to claim the corresponding loss from their predecessors in title if they can prove that the latter were aware of A’s encroachment before the sale and failed to disclose it to them.
As for the advance registration of a judicial application concerning a real right that is provided for in arts. 2966 and 2968 C.C.Q., it is of no assistance in the case of acquisitive prescription. The effective possession on which this form of prescription is based is already public and can already be set up against third parties. Since acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance in order to protect his or her rights.
Finally, the nature of the judgment under art. 2918 C.C.Q. is not determinative of the issue before the Court. In any event, the sole purpose of that judgment is to recognize pre‑existing rights resulting from effective possession and the lapse of time; when all is said and done, the legislature merely intended to restore the situation that existed under the C.C.L.C. in this regard. It is true that when the C.C.Q. was enacted in 1991, the legislature seems to have intended that acquiring ownership of an immovable by prescription should be contingent upon obtaining a judgment. However, the role of art. 2918 C.C.Q. was altered when the reform of the publication of rights system was subsequently suspended and abandoned. That article and the relevant provisions of the Code of Civil Procedure should instead be interpreted in light of the abortive reform and the many changes that resulted from it. This leads to the conclusion that prescription depends on achieving effective possession, not on obtaining a judgment; it is acquisitive prescription that grants the right, not the judgment. In fact, the judgment attests to the existence of a pre‑existing right; it does not create a new right. In this respect, the requirement in art. 2918 C.C.Q. is more like a procedural condition than a substantive one. All these characteristics suggest a nature that is more declarative than right‑granting or constitutive.
In the end, the solution adopted in this case does not weaken the land register and introduces no more uncertainty into real estate transactions in Quebec than there already was. Rather, it accounts for the inevitable effect of acquisitive prescription, a key institution of Quebec civil law that has been recognized by the legislature and whose purpose is to ascribe legal consequences to possession that is already peaceful, continuous, public and unequivocal.
Per Côté J. (dissenting): Under art. 2918 of the Civil Code of Québec (“C.C.Q.”), the acquisition of ownership of an immovable by prescription is conditional on first obtaining a judgment following a judicial application. That judgment is constitutive of the right of ownership and without retroactive effect. Reading down the plain language of art. 2918 so as to render the judgment declaratory and retroactive cannot be reconciled with the legislative balance struck between the right of ownership and the operation of prescription. Such a reading is also inconsistent with the property and publication books of the C.C.Q., and with the rationale behind acquisitive prescription.
The concept of prescription operates in tension with real rights, including the primordial real right in the C.C.Q., ownership. Prescription is nonetheless grounded in a valid two‑fold purpose. First, it operates to efficiently quiet title such that a party to a translatory act need not prove the validity of each link in the chain of title. Second, it operates so as to allow a possessor in fact to acquire the right of ownership to the detriment of the true owner, whose own right is extinguished. In both cases, the regime of prescription has a clear underlying rationale: to promote the efficiency, stability and security of property relationships.
In the modern era, this rationale is only served by recognizing that the conditions for acquisitive prescription of an immovable did in fact change with the introduction of the C.C.Q. Previously, under art. 2242 of the Civil Code of Lower Canada (“C.C.L.C.”), a possessor in bad faith and without title could acquire an immovable only after possessing it for 30 years. Article 2251 C.C.L.C. provided for prescriptive acquisition after only 10 years, but only if the possessor in good faith could found his or her possession upon a translatory title. Article 2918 C.C.Q. replaced these conditions with a single possessory period of 10 years, regardless of the good or bad faith of the possessor, or the presence or absence of translatory title.
In view of these changes — and given that a reduction in the prescription period inherently affects the balance between the rights of the possessor and those of the true owner — art. 2918 imposes a requirement that the possessor may acquire the right of ownership only upon a judicial application. This requirement has no antecedent in the C.C.L.C., and as a result its meaning cannot be defined by reference to practices prevailing under the C.C.L.C.
The abandonment of the land register reform did not relieve possessors of art. 2918’s judicial application requirement. To the contrary, a careful reading of the legislative history of art. 2918 C.C.Q. and s. 143 of the Act respecting the implementation of the reform of the Civil Code reveals that the legislature intended the judgment on the judicial application to be constitutive of the right of ownership and without retroactive effect. Rather than merely surviving the legislature’s purge following the abandonment of the reform, the judicial application requirement took on added importance given that the reduction of the prescription period to 10 years — which was initially premised on the successful completion of the register reform — was maintained. Under the current art. 2918, the lapse of time alone no longer gives the possessor a right of ownership; only a judgment can do that. Holding otherwise conflates possession in fact with the creation or transfer of real rights, and fundamentally upsets the legislative balance struck between the rights of the possessor and those of the true owner.
Giving effect to the plain wording of art. 2918 is consistent with the C.C.Q.’s publication regime which, pursuant to art. 2966 para. 1, permits a possessor to register the judicial application in advance of obtaining the necessary judgment under art. 2918. Under art. 2968 para. 1, the date of advance registration is then deemed to be the date of publication. The effect of these articles is to encourage a prudent possessor who has complied with the wording of art. 2918 to register the judicial application in advance. This aligns art. 2918 with the general publication requirement in art. 2938 C.C.Q. for the “acquisition, creation, recognition, modification, transmission or extinction” of immovable real rights. It also minimizes the prospect of litigation and priority contests, and promotes the efficiency, stability and security of relationships between title holders by encouraging publication. Treating the judgment under art. 2918 as if it had a declarative and retroactive effect does not.
In this case, A did not make the required judicial application under art. 2918 until well after O and S acquired title to the contested immovable and published their title in the land register. O and S are therefore prior in time and — as revealed by the register — prior in rank. The result is that A’s possession is not opposable against O and S’s title.
Cases Cited
By Gascon J.
Referred to: Deschesnes v. Boucher, [1961] B.R. 771; Noiseux v. Savio (1982), 27 R.P.R. 179; Dupuy v. Gauthier, 2013 QCCA 774, [2013] R.J.Q. 662; Medeiros v. St‑Louis, [2002] R.D.I. 352; Dupont v. Saint‑Arnaud, [1992] R.D.J. 88; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Dion v. Ouellet‑Latulippe, 2008 QCCA 1812; Sylviculture et exploitation J.M.J. inc. v. Mayer Hill, 2012 QCCA 1377; De Repentigny v. Fortin (Succession), 2012 QCCS 905; Breton v. Fortin, 2016 QCCS 6149; Gosselin v. Turner, 2012 QCCS 388; Caron v. Gauthier, 2011 QCCS 2898; Beauséjour v. Centre de ski Le Relais, 2015 QCCS 127; Cabana v. Valiquette, 2013 QCCS 4710, aff’d 2015 QCCA 1520; Re Gagné, 2009 QCCS 6064; Re Montmagny (Ville), 2005 CanLII 11604; Re Béland, 2005 CanLII 24349.
By Côté J. (dissenting)
Croisetière v. Gélinas, [1977] C.A. 183; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Dupuy v. Gauthier, 2013 QCCA 774, [2013] R.J.Q. 662; Craig v. Béton Chevalier inc., 2012 QCCS 2888; Granby (Ville) v. Gestion Rainville ltée, 2011 QCCS 4259; Re Gagné, 2009 QCCS 6064; Re Montmagny (Ville), 2005 CanLII 11604; Re Béland, 2005 CanLII 24349; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575.
Statutes and Regulations Cited
Act respecting the implementation of the reform of the Civil Code, ss. 143 [am. 2000, c. 42, s. 87], 155 para. 1.
Act to amend the Act respecting the implementation of the reform of the Civil Code and other legislative provisions as regards security and the publication of rights, S.Q. 1995, c. 33.
Act to amend the Civil Code and other legislative provisions relating to land registration, S.Q. 2000, c. 42.
Charter of human rights and freedoms, CQLR, c. C‑12, ss. 6, 8.
Civil Code of Lower Canada, arts. 406, 1508, 2082, 2089, 2098, 2183, 2183a, 2206, 2242, 2251.
Civil Code of Québec, arts. 331, 627, 884, 912, 916, 921, 922, 928, 930, 947, 1037, 1559, 1643, 1724, 2163, 2847, 2875, 2879, 2885, 2910, 2911, 2912, 2917, 2918 [am. 2000, c. 42, s. 10], 2938, 2941, 2943, 2944 [idem, s. 15], 2945, 2946, 2957, 2962 [rep. idem, s. 19], 2966, 2968, 3026, 3046 to 3053 [idem, s. 73], 3075.
Code Napoléon, art. 544.
Code of Civil Procedure, CQLR, c. C‑25, arts. 805 [am. 1992, c. 57, s. 367], 806.
Code of Civil Procedure, CQLR, c. C‑25.01, art. 468.
Code of Civil Procedure, S.Q. 1965, c. 80, art. 806.
Declaration of the Rights of Man and of the Citizen (1789), arts. II, XVII.
Interpretation Act, CQLR, c. I‑16, ss. 41.1, 50.
Authors Cited
Baudouin, Jean‑Louis, et Pierre‑Gabriel Jobin. Les obligations, 7e éd., par Pierre‑Gabriel Jobin et Nathalie Vézina. Cowansville, Qué.: Yvon Blais, 2013.
Bigot de Préameneu, Félix Julien Jean. “Motifs exposés au Corps législatif sur la loi, titre XX, livre III du Code civil, relative à la Prescription”, dans Recueil des lois composant le Code civil, vol. 9, Paris: Rondonneau, 1804, 26.
Brochu, François. “Critique d’une réforme cosmétique en matière de publicité foncière” (2003), 105 R. du N. 761.
Brochu, François. “Le mécanisme de fonctionnement de la publicité des droits en vertu du nouveau Code civil du Québec, et le rôle des principaux intervenants” (1993), 34 C. de D. 949.
Brochu, François. Mémoire portant sur le Projet de loi no 35, Loi modifiant le Code civil en matière d’état civil, de successions et de publicité des droits, Commission des institutions, Consultations particulières et auditions publiques, 23 mai 2013. Québec, Collection numérique de la Bibliothèque de l’Assemblée nationale (online: https://www.bibliotheque.assnat.qc.ca/DepotNumerique_v2/AffichageNotice.aspx?idn=78453; archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC22_fra.pdf).
Brochu, François. “Nouvelle posologie pour la prescription acquisitive immobilière” (2003), 105 R. du N. 735.
Brochu, François. “Prescription acquisitive en 2007” (2008), 110 R. du N. 225.
Brochu, François. “Prescription acquisitive et publicité des droits” (2005), 107 R. du N. 203.
Brochu, François. “Prescription acquisitive et publicité des droits” (2006), 108 R. du N. 197.
Brochu, François. “Revue de jurisprudence 2012 en prescription acquisitive et en publicité des droits” (2013), 115 R. du N. 205.
Cantin Cumyn, Madeleine. “Les principaux éléments de la révision des règles de la prescription” (1989), 30 C. de D. 611.
Carbonnier, Jean. Droit civil, vol. I. Paris: Quadrige/PUF, 2004.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Deslauriers, Jacques. Vente, louage, contrat d’entreprise ou de service, 2e éd. Montréal: Wilson & Lafleur, 2013.
Dumais, Daniel. “La prescription”, dans Collection de droit de l’École du Barreau du Québec, vol. 4, Responsabilité. Montréal: Yvon Blais, 2016, 219.
Gervais, Céline. La prescription. Cowansville, Qué.: Yvon Blais, 2009.
Gidrol‑Mistral, Gaële. “Publicité des droits et prescription acquisitive: des liaisons dangereuses?” (2016), 46 R.G.D. 303.
Kasirer, Nicholas. “Portalis Now”, dans Nicholas Kasirer, dir., Le droit civil, avant tout un style? Montréal: Thémis, 2003, 1.
Laflamme, Lucie, Marie Galarneau et Pierre Duchaine. L’examen des titres immobiliers, 4e éd. Cowansville, Qué.: Yvon Blais, 2014.
Lafond, Pierre‑Claude. Précis de droit des biens, 2e éd. Montréal: Thémis, 2007.
Lambert, Édith. La prescription (Art. 2875 à 2933 C.c.Q.), coll. Commentaires sur le Code civil du Québec (DCQ). Cowansville, Qué.: Yvon Blais, 2014.
Lametti, David. “Prescription à la recherche du temps: In Search of Past Time (or Recognition of Things Past)”, dans Marie‑France Bureau et Mathieu Devinat, dir., Les livres du Code civil du Québec. Sherbrooke: Revue de droit de l’Université de Sherbrooke, 2012, 267.
Lamontagne, Denys‑Claude. Biens et propriété, 7e éd. Cowansville, Qué.: Yvon Blais, 2013.
Lamontagne, Denys‑Claude. Droit de la vente, 3e éd. Cowansville, Qué.: Yvon Blais, 2005.
Martineau, Pierre. La Prescription. Montréal: Presses de l’Université de Montréal, 1977.
Mayrand, Albert. “Bonne foi et prescription par tiers acquéreur” (1942), 2 R. du B. 9.
Mazeaud, Henri, Léon et Jean, et François Chabas. Leçons de droit civil, t. II, vol. II, Biens: Droit de propriété et ses démembrements, 8e éd. par François Chabas. Paris: Montchrestien, 1994.
McCann, Julie. “Commentaire sur la décision De Repentigny c. Fortin (Succession de) — L’acquisition de la propriété par prescription décennale: effet déclaratif, attributif, rétroactif?”, Repères, février 2013 (available online in La référence).
Mignault, P.‑B. Le droit civil canadien, t. 9. Montréal: Wilson & Lafleur, 1916.
Normand, Sylvio. Introduction au droit des biens, 2e éd. Montréal: Wilson & Lafleur, 2014.
Pineau, Jean. “Le nouveau Code civil et les intentions du législateur”, dans Benoît Moore, dir., Mélanges Jean Pineau. Montréal: Thémis, 2003, 3.
Pratte, Pierre. “Chronique — Le jugement en prescription acquisitive immobilière: déclaratif ou attributif?”, Repères, octobre 2012 (available online in La référence).
Pratte, Pierre. “La demande judiciaire relative à la prescription acquisitive d’un immeuble” (2014), 73 R. du B. 509.
Quebec. Assemblée nationale. Journal des débats de la Commission permanente des institutions, vol. 36, no 82, 1re sess., 36e lég., 2 juin 2000, p. 51‑52 et 69.
Quebec. Assemblée nationale. Journal des débats de la Commission permanente des institutions, vol. 36, no 101, 1re sess., 36e lég., 7 novembre 2000, p. 24.
Quebec. Civil Code Revision Office. Report on the Québec Civil Code, vol. II, t. 2, Commentaries. Québec: Éditeur officiel, 1978.
Quebec. Ministère de la Justice. Commentaires du ministre de la Justice, t. II, Le Code civil du Québec — Un mouvement de société. Québec: Publications du Québec, 1993.
Rémillard, Gil. “Présentation du projet de Code civil du Québec” (1991), 22 R.G.D. 5.
Tancelin, Maurice. “L’acte unilatéral en droit des obligations ou l’unilatéralisation du contrat”, dans Nicholas Kasirer, dir., La Solitude en droit privé. Montréal: Thémis, 2002, 213.
Vincelette, Denis. En possession du Code civil du Québec. Montréal: Wilson & Lafleur, 2004.
APPEAL from a judgment of the Quebec Court of Appeal (Savard and Schrager JJ.A. and Jacques J. (ad hoc)), 2015 QCCA 1368, [2015] AZ‑51208986, [2015] J.Q. no 7834 (QL), 2015 CarswellQue 7807 (WL Can.), affirming a decision of Dumas J., 2013 QCCS 5808, [2013] AZ‑51020921, [2013] J.Q. no 16027 (QL), 2013 CarswellQue 11635 (WL Can.). Appeal dismissed, Côté J. dissenting.
Eric Lalanne, for the appellants.
Philippe Dumaine and Sarah Laplante Bazzi, for the respondent.
English version of the judgment of McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. delivered by
Gascon J. —
I. Overview
[1] This appeal highlights the occasional friction between acquisitive prescription and the apparent certainty of entries in the land register. Like any other source of friction between two or more parts of the Civil Code of Québec (“C.C.Q.” or “Code”), this one must be resolved by adopting the solution that accords best with the general scheme of the Code, but without singling out one of its articles at the expense of others. The concern here is with the consistency of the Code, which is unquestionably one of its fundamental characteristics.
[2] The parties are owners of contiguous lots on which their respective chalets are located. Between 1994 and 2011, the respondent, Ms. Allie, and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and there was no objection to their doing so. In 2011, the appellants, Mr. Ostiguy and Ms. Savard, purchased this neighbouring lot. A few months after taking possession of their property, they applied for an injunction to stop the respondent from parking on it. The respondent replied that she had acquired the two parking spaces by 10‑year prescription. The trial judge agreed with her in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed.
[3] The appellants no longer contest the trial judge’s findings of fact regarding the status of the respondent’s possession. However, they do raise a question of law on which this appeal is based: Can acquisitive prescription be set up against a new owner whose title was registered in the land register before the possessor’s right was asserted in court?
[4] In the Court of Appeal, the majority answered this question in the affirmative and dismissed the appeal. The dissenting judge, on the other hand, would have allowed the appeal and confirmed the appellants’ title.
[5] I would dismiss the appeal. The Code has not changed the process of acquisitive prescription, which may be set up against the registered owner regardless of when his or her right was registered. This conclusion is based on the legislative history of the provisions at issue and reflects the need for consistency between the relevant books of the Code. In contrast, the solution proposed by the appellants is based on a literal interpretation of art. 2918 C.C.Q. that would be incompatible with several provisions of the Code, that would result in inconsistencies the legislature could not have intended, and that must therefore be rejected.
II. Background
[6] The facts of this case are no longer in dispute. They can be summarized briefly. In 1993, the respondent’s predecessor in title, her deceased spouse, purchased the lot of which she is now the owner. From 1994 to 2011, their family had peaceful, continuous, public and unequivocal possession of one of four parking spaces located on their neighbour’s lot. Between 2004 and 2011, after the space had been acquired by 10‑year prescription, the respondent nevertheless did not bring legal proceedings to have her right recognized.
[7] The appellants acquired this neighbouring lot in 2011 by act of sale. Relying on their title, which was registered in the land register, they moved quickly to send the respondent a formal notice to stop parking on their property. A few months later, they applied for an injunction to the same effect. The respondent objected to that application. She filed a cross demand, arguing that she had acquired not one but two of the parking spaces by 10‑year prescription and that that acquisition took precedence over the appellants’ title.
III. Judicial History
A. Quebec Superior Court (2013 QCCS 5808)
[8] The trial judge found that the respondent and her predecessor in title had had effective possession of one parking space on the appellants’ lot for 10 years. The respondent had in that way acquired ownership of the space in question by prescription. The judge therefore declared her to be the sole owner of the parking space and ordered that the judgment be registered in the land register.
B. Quebec Court of Appeal (2015 QCCA 1368)
[9] All three judges of the Court of Appeal adopted the trial judge’s findings of fact regarding the respondent’s effective possession. However, they were divided on whether that possession could be set up against the appellants.
(1) Majority reasons of Savard and Schrager JJ.A.
[10] Savard J.A., writing for the majority, concluded that the respondent’s possession could be set up against the appellants. She mentioned that there is some debate among academic authors and in the case law about whether a judgment under art. 2918 C.C.Q. recognizes or grants a right of ownership. However, she found that this issue was not relevant in the context of the appeal. Neither art. 2918 nor the Code as a whole had changed the principles with respect to acquisitive prescription that had applied under the Civil Code of Lower Canada (“C.C.L.C.”), according to which possession could be set up against an owner whose title was registered in the land register.
[11] Savard J.A. noted that a possessor can acquire rights by prescription without a title, even if in bad faith. Accordingly, the presumptions of knowledge and of the existence of a right published in the land register, set out in arts. 2943 and 2944 C.C.Q., can at best serve to prove bad faith on the respondent’s part. They do not, however, change how prescription is acquired and may be rebutted by proof to the contrary, as provided for in art. 2847 C.C.Q.
[12] Savard J.A. observed that acquisitive prescription makes it possible to prove the existence of a right of ownership, whereas the role of land registration is limited to deciding between competing successors to the same predecessor in title (art. 2946 C.C.Q.) and to the ranking of security interests, but is no guarantee of title. She noted that the appellants’ argument would lead to an irrebuttable presumption of the existence of published rights in respect of any immovable, thereby giving the land register a probative value greater than the legislature had intended to give it in the initial version of the Code, which had limited this presumption to immatriculated immovables (art. 2944 para. 2 C.C.Q., since repealed (2000, c. 42, s. 15)). It was in the context of the reform of the land register, which has since been abandoned, that the initial version of art. 2918 C.C.Q. was enacted, and it, too, drew a distinction between immatriculated and non‑immatriculated immovables.
[13] Savard J.A. was also of the opinion that the appellants’ argument would resurrect art. 2962 C.C.Q., which had been enacted as part of the same reform but had since been repealed (2000, c. 42, s. 19), and which had protected rights in an immatriculated immovable that were acquired in good faith. She acknowledged that acquisitive prescription can sometimes come as a surprise, but noted that it is not open to the courts to interfere with the legislature’s choices in this regard.
[14] In Savard J.A.’s view, the solution proposed by the appellants was inconsistent with art. 2957 C.C.Q., which provides that the publication of rights does not interrupt prescription. This solution would also lead to the untenable conclusion that the possessor had waived prescription simply by failing to bring a judicial application upon the expiry of the 10‑year period. In addition, advance registration of a judicial application would be of no assistance, given that the possessor is generally unaware that his or her right may be contested. Finally, art. 2946 C.C.Q. did not apply in this case, because the parties did not hold their title from the same predecessor.
[15] Savard J.A. concluded that the legislature did not, in enacting art. 2918 C.C.Q., intend to fundamentally change the principles applicable to acquisitive prescription. A possessor is not therefore required to take legal action upon the expiry of the 10‑year period. In closing, she noted that the respondent was not a concealed third party, as there were signs that could have shown the appellants, when they purchased the property, that the respondent was using a parking space on it.
(2) Dissenting Reasons of Jacques J. (ad hoc)
[16] Jacques J., on the other hand, was of the opinion that the need for stability of real estate transactions means that the respondent must not be able to set up her possession against the appellants. In his view, the primary purpose of acquisitive prescription is to protect the true right of ownership by making it easier to prove; it does not allow a [translation] “usurper” to strip an owner of rights unless the owner has not exercised due diligence. In short, its purpose is above all to correct defects of title, not to confer a right upon a “squatter”.
[17] Jacques J. argued that the right to prescribe acquired by the respondent in 2004 is distinct from the real right she was seeking, which can be obtained only upon a judicial application under art. 2918 C.C.Q. In his opinion, the judgment resulting from that application is an essential condition for acquiring ownership by prescription. It thus grants a right of ownership, as is confirmed by the language of that article and of arts. 805 and 806 of the Code of Civil Procedure, CQLR, c. C‑25 (“C.C.P.”), and by certain commentators and judicial decisions. The retroactive effect sought by the respondent would be contrary to s. 50 of the Interpretation Act, CQLR, c. I-16, and would make it impossible for third parties to rely on the land register.
[18] Jacques J. found that acquisitive prescription is subject to the publication of rights under art. 2938 C.C.Q.; the respondent thus had to publish her right to be able to set it up against others. In his view, she could also have registered her application in advance (art. 2966 C.C.Q.), which would have made a judgment in her favour retroactive to the date of the advance registration and capable of being set up as of that date (art. 2968 C.C.Q.). Thus, although registering in advance is not mandatory, anyone who fails to do so risks losing his or her right. In this respect, the possessor has no more rights than any other holder of an immovable real right. The onus is on the possessor to verify his or her title and exercise due diligence to correct any defect that might affect it.
[19] In Jacques J.’s opinion, acquisitive prescription could not be set up against the appellants, who had not been negligent and would be left without recourse. Financial institutions would also see their security diminished and they, too, would have no recourse, a situation that could have been prevented had the respondent’s application been registered in advance. A finding against the appellants, who had relied on their title in good faith, would make the land register practically worthless. Moreover, art. 2962 C.C.Q. had been repealed for a technical reason related to a change to the concept of immatriculation; the repeal did not preclude the application of the theory of “apparent rights” (droits apparents), which was already recognized in Quebec law.
[20] Jacques J. concluded that the appellants were third parties in relation to the respondent. Their rights would prevail over hers pursuant to arts. 2945 and 2946 C.C.Q., as they had been published in a timely manner. The respondent, on the other hand, was [translation] “a concealed third party who [came] out of nowhere” (para. 141 (CanLII)), and her position was in direct conflict with the applicable provisions on the publication of rights. It would make no sense if the unpublished rights of an acquirer by prescription could be set up against third parties but those of an acquirer by act of sale could not.
IV. Issue
[21] According to the trial judge’s findings of fact, the respondent and her predecessor had peaceful, continuous, public and unequivocal possession of the parking space at issue from 1994 to 2011. Given that this effective possession satisfies the requirements of the Code, the only remaining issue is whether prescription that has already been acquired can be set up against a new owner who registers his or her title in the land register before the possessor takes legal action.
V. Analysis
[22] First of all, it should be mentioned that the parties on each side in this case have a legitimate right to assert. The appellants acquired their title legally, by act of sale. The respondent’s effective possession of one of the parking spaces on her neighbours’ lot is recognized and is just as legitimate. In light of the evidence accepted by the trial judge, and contrary to the suggestion of the dissenting judge in the Court of Appeal, the respondent cannot be described as a concealed third party, a usurper or a “squatter”.
[23] It is also important to mention that the completeness of the right of ownership is not at issue in this appeal. The Court is not being asked to determine the substance or the limits of that right, but to clarify the operation of one of the means for acquiring it. In the end, the right of ownership is just as absolute regardless of whether it is found to be held by the appellants or by the respondent.
[24] What must be done in order to determine which of the parties should prevail is to define the respective roles of acquisitive prescription and the publication of rights in Quebec civil law, and then to interpret and apply the relevant provisions of the Code, taking into account its overall scheme and its consistency. An analysis in this regard persuades me that the solution adopted by the majority of the Court of Appeal is the one that should prevail here. In light of the provisions of the four books of the Code that interact in this case (namely the books on Property, Obligations, Prescription, and Publication of Rights), I find that the acquisitive prescription claimed by the respondent with regard to the parking space at issue must prevail over the title registered by the appellants in the land register.
A. Acquisitive Prescription in Quebec Civil Law
[25] Acquisitive prescription was once described as the patron of humankind (A. Mayrand, “Bonne foi et prescription par tiers acquéreur” (1942), 2 R. du B. 9, at p. 9). The drafters of the Code Napoléon, from which the drafters of the C.C.L.C. borrowed heavily, even considered that among civil law institutions, acquisitive prescription was [translation] “the most necessary for social order”, finding that without its capacity for legalizing situations resulting from possession, “everything would be uncertain and confused” (F. J. J. Bigot de Préameneu, “Motifs exposés au Corps législatif sur la loi, titre XX, livre III du Code civil, relative à la Prescription”, in Recueil des lois composant le Code civil (1804), vol. 9, 26, at pp. 27‑29).
[26] Although the primary function of acquisitive prescription is to ensure the stability of property rights by helping true owners prove their rights, it also enables third parties to acquire property by the lapse of time in accordance with the conditions established by law