Rainbow

Rainbow

Thursday, April 27, 2017

Environmental Obligations and Bankruptcy - Alberta Court of Appeal says bankruptcy trustee can disclaim orphaned wells

The Alberta Court of Appeal has released a split decision on the following question:  can the trustee administering the estate of a bankrupt oil and gas company renounce or disclaim the company's interest in orphan oil wells (i.e. wells for which the cost of remediation required for abandonment exceeds the value of the well), but keep and sell off other valuable wells in order to maximize the recovery of secured creditors?  Justices Slatter and Schutz ruled that the trustee is permitted to disclaim the orphan assets.  Justice Martin, writing in dissent, sided with the Alberta Energy Regulator ("AER") and would have ruled that a portion of the sale proceeds from valuable wells must be set aside to meet the expected costs of remediating orphan wells.

The case involved Redwater Energy Corporation, a publicly traded oil and gas company. In 2015, Redwater's principal secured creditor, the Alberta Treasury Branches ("ATB"), commenced enforcement proceedings after Redwater couldn't meet its financial obligations.  On May 12, 2015, Grant Thornton was appointed Receiver for Redwater under the Bankruptcy and Insolvency Act ("BIA").

In July, 2015, Grant Thornton told the AER that it would be taking control of only 20 of the 127 Redwater oil and gas licences.  The AER responded by issuing orders, "for environmental and public safety reasons", requiring the abandonment and remediation of the 107 wells that the Receiver was looking to disclaim.  In October, 2015, a bankruptcy order was issued for Redwater.  In November, 2015, Grant Thornton, now trustee in bankruptcy for Redwater, disclaimed the assets it had previously renounced in its capacity as Receiver, and indicated to the AER that it did not intend to comply with the environmental remediation orders.

The AER and the Orphan Well Association ("OWA") brought court applications for declarations that the disclaimer was void.  They also sought an order compelling Grant Thornton, as trustee, to comply with the abandonment and remediation orders issued by the AER.  Grant Thornton brought a cross-application for approval of the sale of certain assets, and ruling on the constitutionality of the AER's position.

The Chambers Judge hearing the matter ruled that the claim of Redwater's secured creditor, ATB, has priority over Redwater's obligation to reclaim its wells.  The Court of Appeal heard appeals of that ruling focusing on "whether a receiver or trustee in bankruptcy must satisfy the contingent liability inherent in the remediation of the worthless wells in priority to the claims of secured creditors."  The appeal involved questions of law for which the standard of review is correctness (i.e. it's not enough for the lower court decision to have been reasonable - it has to have been correct on the law).

As noted above, the majority of the panel hearing the appeals upheld the decision of the Chambers Judge, ruling that the bankruptcy trustee is not bound to comply with the abandonment and remediation orders and does not have to divert the value from valuable assets to cover the environmental costs related to other assets.  The reasons are extensive, and include discussion of the interplay between the provincial environmental legislation (the oil and gas regime) and the federal BIA regime.  The majority concluded that, "Under the proper interpretation of the BIA, the Regulator cannot insist that the bankruptcy trustee devote substantial parts of the bankrupt estate in satisfaction of the environmental claims in priority to the claims of the secured debtor.  To the extent that the interpretation of the provincial legislation leads to a different result, the [federal] paramountcy doctrine is engaged."

The majority also pointed out that the provisions in Alberta's Oil and Gas Conservation Act and Pipeline Act that purport to make receivers and trustees personally liable for the duty to abandon oil wells and pipelines, the costs of remediation performed by other persons, and the duty to obey orders of the Regulator, are in operational conflict with the BIA.  For example, the BIA contains provisions that exempt a trustee and a receiver from personal liability and that allow them to disclaim assets.  As such, the majority concluded, the personal liability provisions in the Alberta legislation are unenforceable against BIA receivers and trustees.

In her dissenting opinion, Justice Martin disagreed with the majority that the provisions of the Alberta oil and gas legislation actually conflict with the BIA.  She found that the BIA does not permit the trustee to renounce the end of life obligations imposed by the provincial regulatory regime. Therefore, the BIA does not release the trustee from its ongoing regulatory obligations with respect to the Redwater wells.  If there is no entitlement to renounce those obligations under the BIA, then there is no conflict between the BIA and the enforcement of the regulatory obligations (to abandon and remediate wells).

Justice Martin was also of the opinion that the abandonment and remediation regime in Alberta does not frustrate the purposes of the bankruptcy legislation (which include providing for the orderly liquidation and winding up of the insolvent debtor, distributing realizable assets fairly among the creditors, having regard to the legal priority of various types of debt, and providing the bankrupt with a "fresh start"):
The cost of abandoning licensed wells and reclaiming well sites is an ongoing regulatory obligation and an inherent part of the licensed asset, well known and understood by the debtor licensee and the licensee’s lenders. The record makes clear that it was well understood by the respondent ATB, the primary lender here. The end of life obligations associated with licensed assets, being compliance costs to generally applicable laws, are factored in to the lender’s risk assessment and its decision to lend on the strength of the debtor’s collateral. 
The continued application of the regulatory regime following bankruptcy does not determine or reorder priorities among creditors, but rather values accurately the assets available for distribution. The value of the debtor’s estate must take into account the end of life obligations associated with the licences that form a part of that estate. If this means that, in the end, there is less value available for distribution to the creditors, that is part of the bankruptcy scheme and the risk that the creditor takes when lending on the basis of the debtor’s assets, with their associated obligations. [emphasis added]
We'll have to see whether this case goes to the Supreme Court for a further review.

Read the decision at: Orphan Well Association v Grant Thornton Limited.

Tuesday, April 25, 2017

Court grants injunction to Enbridge over interference with maintenance digs

Back in March, 2017, Enbridge Pipelines Inc. ("Enbridge") was in court seeking injunctions against two individuals to prohibit them from interfering with maintenance work being conducted on Lines 10 and 11, two adjacent oil pipelines near Hamilton, Ontario.  Enbridge asserted that the individuals had been regularly interfering with its work crews since January, 2017, including the tearing down of snow fences and gates and verbally demanding that work be shut down.  Enbridge also alleged that, after two weeks of obstruction, the individuals placed rabbit traps to obstruct access to the dig sites and then asserted treaty hunting rights.

In their defence, the individuals involved in the case alleged that they are Haudenosaunee citizens with the ability to exercise rights upon Haudenosaunee traditional treaty territory.  They served Notices of Constitutional Question stating their intention to question the constitutional validity of the following: 1) the Trespass to Property Act as it may apply to a Haudenosaunee person undertaking harvesting activity pursuant to treaty rights; 2) any interim or interlocutory injunction which would directly or indirectly impair, infringe and/or interfere with the exercise of treaty rights where the Crown has not discharged its obligations to uphold the Honour of the Crown (duty to consult and accommodate); and, 3) the granting of any easement (i.e. Enbridge's pipeline easements) where treaty rights would be impaired, infringed and/or interfered with where the Crown has not discharged its obligation to uphold the Honour of the Crown (duty to consult and accommodate).

Justice Broad of the Ontario Superior Court of Justice reviewed the constitutional arguments and concluded that, "the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court's decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds."  Also, Justice Broad noted, "The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised."

Having disposed of the constitutional issues, Justice Broad reviewed Enbridge's request for injunctive relief on the basis of the standard three-part test for injunctions:

1)      the plaintiff must establish a serious question to be tried;
2)      the plaintiff must show that it will suffer irreparable harm if the injunction is not granted; and
3)      the balance of convenience favours the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.
Justice Broad ruled in favour of Enbridge on all three parts of the test.  With respect to the defendants' treaty right claims, he concluded: "The defendants' claim to relevant interests or rights may be advanced by appropriate parties or groups having the requisite standing through lawful avenues.  The defendants' resort to unlawful self-help should not, however, be countenanced ...".

Read the decision at: Enbridge Pipelines Inc. v. Williams et al.

Friday, April 21, 2017

Bachelor farmer dies in accident in 2009 - Court tasked with interpreting holographic will from 1992

Farmer P was 60 years old when he died in an accident on his Saskatchewan farm in March, 2009.  He had no spouse and no children, and was survived by his 95-year old mother, a brother and sister-in-law, and a sister.  After P's death, his family discovered that he had made a holographic will in 1992 that provided as follows:


Last Will and Testament of [P]
I leave all my farming assets to [my brother and sister-in-law].
I leave 50% of my personal assets to [my brother and sister-in-law].
I leave 50% of my personal assets to my sister [K].
All household personal assets (those that Mom can use) I leave to [my mother].

A holographic will is one that is made entirely by the testator's own handwriting, without formality, and without the presence, attestation or signature of a witness (e.g. the mythic will written on a napkin).

For almost 8 years after P's death, his siblings were engaged in acrimonious disputes about the administration of P's estate and their entitlement to his assets.  The assets included farmland, farm equipment, grain and inputs inventories, etc.  The debts owing by P's estate included substantial income tax owing, a tractor loan, a mortgage, etc.  The questions left by the holographic will included which assets were farm assets and which assets were personal assets, and which debts were to be paid by the Estate and which debts were to be paid by individual beneficiaries.  In January, 2017, Justice Ball of the Court of Queen's Bench in Saskatchewan issued a decision in which he wrote: "Hopefully, this decision will do something to bring an end to the litigation."

Justice Ball noted that, "The court's only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed."  After reviewing the law applicable to the interpretation of wills, Justice Ball then reviewed the evidence about the information known by P at the time he made his will in 1992 that provides the context for the will.  Having reviewed the context, Justice Ball concluded, among other things, that "farming assets" included all farmland, farm implements and inventory, and unsold grain on hand; "Personal assets" included all household effects in P's home, personal motor vehicles, and personal bank account balances.

At the end of the decision, there were still some assets that could not be assigned to a specific category based on the evidence before the Court.  These assets included surface lease annual payments and farm subsidies or other government payments.  Further evidence would need to be filed with the Court before any decision could be made on those assets.

As with most estate law cases involving farms, the lesson to be drawn from this case is that it pays to have a clear and fully-documented succession plan in place as soon as possible.  Farmer P did have a will at the time of his fatal accident, but that will was not sufficiently instructive to his family to avoid nearly a decade of litigation.

Read the decision at: Ellingson v Ellingson Estate.

Tuesday, April 18, 2017

Court of Appeal confirms inconsistent use requirement for adverse possession in Ontario

In a recent post, I wrote about a B.C. adverse possession case that made it all the way to the Supreme Court of Canada - Nelson v. Mowatt.  The Ontario Court of Appeal has now released a decision in which it comments on the Mowatt decision and the question of whether an Ontario adverse possession claimant must satisfy the "inconsistent use requirement" (by demonstrating that his or her use of disputed lands was inconsistent with the intended use of the "true owner").  Here is what the Court says:
A note on Mowatt
[29]      After this appeal was heard, the Supreme Court released Mowatt, a decision concerning the law of adverse possession in British Columbia. We refer to Mowatt in para. 20, above. In Mowatt, the Supreme Court also noted, citing Masidon and other cases, that the inconsistent use requirement appears in the jurisprudence of Ontario.  It held that the law of British Columbia governing adverse possession does not require a claimant to demonstrate that his or her use of disputed lands was inconsistent with the intended use of the “true owner”. At para. 27, Brown J., for the court, wrote: “Whether the requirement is properly applicable in other provinces remains an open question subject to examination of their respective legislative histories, the wording of their particular limitation statutes, and the treatment of these matters by the courts of those provinces.”  
[30]      In supplemental submissions following the release of Mowatt, the appellants effectively urge this panel to overrule Masidon and eliminate the inconsistent use requirement in Ontario, without regard to whether there is mutual or unilateral mistake.  However, this panel is not in a position to overrule Masidon.
So, it seems that the question left open by the Supreme Court has (relatively) quickly been answered by the Ontario Court of Appeal: inconsistent use remains a requirement of the law of adverse possession in Ontario (see Masidon Investments Ltd. v. Ham).

Read the Ontario Court of Appeal's decision at: Sipsas v. 1299781 Ontario Inc.

Friday, March 31, 2017

Road Access Act saves landlocked neighbour from conviction on trespassing charge

Landowner W was charged with trespass, a provincial offence under the Trespass to Property Act, after he used a road he had constructed through a neighbour's property to reach his own landlocked property.  In her decision acquitting W of the charge, Justice of the Peace MacKinnon described the properties involved as follows:
This case involves three parcels of land, two of which front on Highway 609. Highway 609 is a two lane secondary highway in a rural area of Northwestern Ontario and runs in an east-west configuration.
On the south side of Highway 609 there is a parcel of land belonging to [M]. The west side of the [M] property fronts on the Wabigoon River. To the east of the [M] property is property belonging to [B] which is the North part of Lot 5, Concession 5. Its north boundary is Hwy 609, and its south boundary is on the north side of the defendant’s ([W]’s) property.
The defendant’s property is to the south of both the [M] and [B] properties. Its western boundary includes grasslands and the shore of the Wabigoon River. North is the [B] property and east is another property.
It is not disputed that the defendant purchased his lot as a landlocked property. He arranged for an easement over the [M] property from Highway 609, and received authority from the province for an entrance from the highway. He built a road south from Highway 609 through the [M] property but eventually turned southeast onto the [B] property and crossed it to his lot. [emphasis added]
A dispute arose surrounding the portion of this road on the [B] property.
At trial, W admitted that he had purchased his landlocked property as having water access only; it was his intention to purchase access from his neighbours (which he did from neighbour M, but not neighbour B).

The fact that W had constructed a road in part on lands owned by B and the fact that W had used that road were not in dispute.  What was at issue in the trial was whether W had a right or authority conferred by law which allowed W to go on the road through B's property.

Justice of the Peace MacKinnon examined whether W had a right or authority based upon the Road Access Act.  She noted:
The Act sets out strict prohibitions against landowners taking matters into their own hands and blocking or obstructing access roads, and requires an application to a Superior Court judge for an order closing the road. Landowners may only block a road when there is an alternate route for the landlocked owner to access their land. Such alternate routes must be in existence contemporaneously. A charge against a landowner who violates the Act, is a provincial offences matter with fines of up to $5,000 (s.61 POA).
MacKinnon, J.P. then found that W's road through B's property was a "road" for the purposes of the Road Access Act, meaning that W had a legal authority to use the road at the time for which he was accused of having trespassed.  The road was not owned by a municipality or dedicated as a public highway.  The road served as an access to landlocked property.  W had a "limited and temporary statutory right to use the road".  In fact, MacKinnon J.P.'s decision says that until such time as a closing order is obtained by B from the Superior Court as required by the Road Access Act, W would not be a trespasser on the road.

On top of the prosecution for trespass, W also faced (or faces) a civil claim from B related to the road through B's property.  It would be interesting to know how the decision to dismiss the trespass charge will affect the civil proceeding.  Was it correct to find that W could establish a right to trespass on B's property by building his own road, even after he had asked for and was denied permission to do so? The Road Access Act may protect use of existing roads, but does it effectively empower a landlocked landowner to use a new road as long as that landowner can manage to get the road built on the neighbour's lands?  And will the court hearing the civil claim be bound by the ruling made by the Justice of the Peace in the trespass case, even if it is incorrect?

Read the decision at: R. v. Weber.

Thursday, March 30, 2017

Normal Farm Practices Protection Board examines tree clearing as a normal farm practice

Pursuant to Section 6 of the Farming and Food Protection Act (the "Act") in Ontario, municipal by-laws do not to apply to restrict a normal farm practice carried on as part of an agricultural operation.  Farmers or other persons wanting to engage in a normal farm practice (that is part of an agricultural operation) can apply to the Normal Farm Practices Protection Board (the "Board") for a determination as to whether a specific practice is a "normal farm practice" for the purposes of Section 6.  If the Board makes a determination that a specific practice is a "normal farm practice", then the municipal by-law in question, by operation of the Act, would not restrict the practice.

Recently the Board heard an application by landowners in the County of Norfolk who contended that the removal of trees from an irregularly shaped bush to "straighten up a field" was a normal farm practice.  On that basis, the landowners argued that the County of Norfolk's Forest Conservation By-Law did not apply to restrict the removal of trees for that purpose.

The County disagreed.  The County had already issued a stop work order to the landowners previously when a portion of the bush on their property was removed in 2013.  It advised the landowners at that time that, in the future, an application for a permit would be required for any future removal.  Late in 2015, a complaint was received about further removal of trees and a second stop work order was issued to the landowners.  The landowners appealed that stop work order to the By-law Appeals Committee for the County, but were unsuccessful.

The Board determined that, in this case, the tree clearing activities proposed by the landowners did not constitute a "normal farm practice".  The landowners did not call expert evidence on the question of whether tree removal to straighten a field is a normal farm practice.  They did not call evidence from any other agricultural operators to demonstrate that similar tree removal had been done under similar circumstances.  Absent evidence to support the notion that the tree removal was a "normal farm practice", the Board found that the landowners failed to prove on a balance of probabilities that it was a "normal farm practice".

Also, the Board went on to find that, in any event, the landowners' tree removal would not have been a "normal farm practice" because they had cleared more trees than "would be reasonably expected to be necessary to straighten a field line and, in fact, it amounts to an attempt to clear cut a portion of the bush."  And further, the Board noted as an aside (obiter dicta) that the County's tree by-law does not actually restrict a "normal farm practice" to the extent that straightening a field is a normal farm practice.  The Board referred to the fact that the by-law provides for a permit process and that the requirement of a permit, the application fee and any condition of reforestation or payment in lieu "are reasonable and would not be restrictive."

On that point, it is worth noting the following evidence given by the County's By-Law officer at the Board hearing:

Mr. [B]’s evidence was that Mr. and Mrs. [M] would have required a permit under Section 4 of the by-law in order to authorize the tree removal that they had done and wished to continue, that approximately 80% of exemption permits are supplied with respect to agricultural operations and that he has not seen any denied when they went to Council.

The present application fee for a permit for a Council Exemption is $255.00.  The permit may come with conditions requiring reforestation or a fee payable to the Municipality in lieu of reforestation in the approximate amount of $1,900.00 per acre.  These monies are placed in a separate fund and are used for reforestation elsewhere in the County. [emphasis added]

Landowners who intend to remove trees from woodlot and woodland areas need to be aware of any applicable municipal tree by-laws or other regulations.  While compliance with by-law or regulatory requirements may seem a nuisance to farmers and landowners who have no intention of clear-cutting bush and only want to "straighten up a field", the price of obtaining necessary permits is often much less expensive than the consequences of non-compliance.  Although the Board's decision does not indicate that any prosecution was launched against the landowners, failure to comply with tree by-laws may result in the laying of charges and, in the case of a conviction, in greater restrictions on future tree removal than would have been applicable in the first place.

Read the decision at: Meijaard v Corporation of Norfolk County.

Wednesday, March 22, 2017

Neighbour loses claim for damages from biosolid application on field next door

The Plaintiff in this case sued her neighbour over concerns that her well water had been contaminated by the agricultural field application of municipal sewage waste or biosolids.  The neighbour actually leased the land to a farm operation, so he commenced third party claims against both his tenant (the farm operation) and the company that applied the biosolids.  The Plaintiff's claims were based on nuisance and negligence.

Justice Heeney of the Ontario Superior Court of Justice dismissed the Plaintiff's claim on the basis that the application of biosolids did not cause the Plaintiff's well to become contaminated.  Put another way, the Plaintiff failed to prove, on a balance of probabilities, that the application of the biosolids caused contamination of the well.  In his decision, it was not necessary for Justice Heeney to address the question of who might be liable for what.

Evidence in this case was heard over 6 days of trial, and included testimony concerning the application of the biosolids.  The application project had been approved by the Ministry of the Environment ("MOECC") following extensive soil testing and other measures.  The biosolids were to be applied to 90 acres of wheat stubble.  The Plaintiff had a 14-foot dug well just a few feet north of the southerly boundary of her property, in close proximity to the neighbouring field.  On the day that the biosolid application commenced, the Plaintiff said water from her shower was "brown and stinky", and smelled like "vomit material".

The Plaintiff's water was tested following the application of the biosolids.  There was some detection of coliform, but there had been positive readings of coliform in the well water prior to the biosolid application project.  No e.coli was detected.  The absence of e.coli in the water was, in Justice Heeney's opinion, the single most significant fact in the case.  There was opinion evidence that, if biosolids had entered the well, there would have been a very high level of e.coli in the water that would have been detectable when the water was tested.  E.coli is specifically used in water testing as "being the most accurate indicator of fecal contamination - sewage or fecal contamination".  Justice Heeney concluded that the biosolid application did not contaminate the Plaintiff's well.

Read the decision at: Marshall v. Shaw.

Wednesday, March 8, 2017

Supreme Court of Canada discusses the law of adverse possession in recent case

Property law cases do not often reach the Supreme Court of Canada, but a recent adverse possession case out of British Columbia did make it to Canada's highest court.   While certain aspects of the decision are limited in application to British Columbia, the Supreme Court does review the law of adverse possession generally in its reasons.

The Claimants in the case in question claimed title to a parcel of land in Nelson, BC that is adjacent to a separate parcel they purchased in 1992.  The registered owner of the disputed parcel was the provincial Crown.  The Claimants alleged that they and their predecessors in title had continuously possessed the disputed parcel since the early 20th century and, therefore, that ownership had transferred to them by the passage of time.  The Claimants commenced an action for a declaration that the provincial Crown was not the owner of the parcel (and could not transfer it to the City of Nelson), and also brought a petition for judicial investigation of their title under the BC Land Title Inquiry Act.

The headnote from the Supreme Court's decision describes the law of adverse possession as follows: 
"Adverse possession is a longstanding common law device by which the right of the prior possessor of land, typically the holder of registered title, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. To meet the test of establishing adverse possession, the act of possession must be open and notorious, adverse, exclusive, peaceful, actual and continuous. The adverse possessor who successfully obtains title need not always be the same person whose adverse possession triggered the running of the limitation period."

At first instance, the judge hearing the matter granted a summary dismissal application by the City of Nelson, having found that there was an evidentiary gap with respect to the question of continuous possession.  A claim for adverse possession of someone else's property must rest on possession of land by a claimant for a specified period of time that open and notorious, adverse (vis-a-vis the registered owner), exclusive, peaceful, actual and continuous.  The judge at first instance found that there was an interruption in continuity of adverse possession from 1916-1920, resulting in the dismissal of the claim.  The Court of Appeal for BC reversed the decision to dismiss the claim, finding that there was evidence of continuous adverse possession from 1909-1923.  On that basis, the Court of Appeal remitted the matter back to the BC Supreme Court for final determination of the proceedings.

On further appeal, the Supreme Court of Canada reversed the Court of Appeal decision and restored the dismissal of the adverse possession claim made by the judge at first instance.  The Supreme Court found that the original finding of an evidentiary gap could not be set aside by the Court of Appeal based on the evidence.  While the Court of Appeal's finding that there was continuous adverse possession from 1909-1923 was reasonable, the Supreme Court found that the original judge's finding of the gap from 1916-1920 was not open to second-guessing by the Court of Appeal.  Absent a palpable and overriding error, the factual findings of the original judge hearing the matter could not be disturbed.

In this particular case, the time period in the between 1909 and 1923 was important because the claimants had to prove continuous adverse possession of the land either for a period of 20 years leading up to 1930-31 (the date at which the disputed parcel was escheated to the Crown because the company that was at the time the registered owner was dissolved) or for a period of 60 years leading up to the 1970s (when the law in BC was changed to prevent adverse possession going forward).  The onus was on the Claimants to prove continuous adverse possession during the relevant periods, and any gap in the evidence would be fatal to the claim.  A gap was found and the claim failed.

In its reasons, the Supreme Court of Canada also addressed the issue of inconsistent use.  At Common Law, there has been a requirement that a possessor's use of the disputed land must have been inconsistent with the "true owner's" present or future enjoyment of the land.  To be truly adverse, the possession must "entail a use of the property that is inconsistent with the true owner's intended use of the land."  However, while that inconsistent use requirement has appeared in the jurisprudence in Ontario, it has formed no part of the law in British Columbia.

The Supreme Court also commented on the distinction between "continuous possession" and "continuous occupation".  The Claimants suggested that the judge at first instance had erred in finding the evidentiary gap by confusing possession and occupation.  They argued that proof of continuous occupation of land is not required to prove continuous possession of land.  The Supreme Court acknowledged that "possession" does not require continuous occupation - a person may possess land in a manner sufficient to support a claim to title of the land while choosing to use the land intermittently or sporadically.  However, the Supreme Court found that the apparently interchangeable use of the terms "possession" and "occupation" by the judge at first instance did not change the outcome of the case.  The only evidence of "possession" before the judge was "occupation" (no form of possession less than that was posited to the judge).

Read the decision at: Nelson (City) v. Mowatt.