Locals face legal costs after losing land dispute to McCain heiress

HALIFAX — A dispute over access to a strip of Nova Scotia sand has concluded in favour of an heiress to the McCain business dynasty, with local residents facing payment of legal costs.

"I am relieved this ordeal is now resolved," Eleanor McCain, a singer and recording artist, said in a statement after a court hearing on Thursday.

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A group of residents of Hackett's Cove, southwest of Halifax, went public in 2015 with their complaint that McCain had asked them to stop using a wooded pathway on land she owned.

The residents stopped using the path, making it more difficult for them to reach Barney's Beach, but in December 2018 they served legal notice to McCain claiming that a historic right-of-way had existed since 1867.

The beach is Crown land to the high-water mark.

However, the 14 plaintiffs recently dropped their civil action, and Nova Scotia Supreme Court Justice Anne Smith signed a permanent injunction Thursday that states the residents agree not to enter "any part" of McCain's land.

It notes the injunction is granted with "costs and disbursements in favour of the applicant Eleanor McCain ... in an amount to be agreed upon by the parties or, failing agreement, to be determined by the court."

In an emailed statement, McCain said the claimants brought forward a case based on incorrect information.

"They were relying on an 1867 deed that refers to a right-of-way to Wreck Cove, which they said was the shore of my property. In fact, the shore of my property is known as Barney's Beach, as it has been since 1817."

She said she tried to settle the lawsuit in July, and "there have been significant and unnecessary costs incurred in the interim."

McCain's lawyer, Nancy Rubin, is expected to detail the legal costs McCain will seek from the residents by Jan. 24, after which the residents can file a response.

The lawyer for the residents, Dianna M. Rievaj, told Smith during Thursday's hearing that it was unlikely that an agreement would be reached on the amount. She also said outside court her clients aren't commenting until the costs issue is concluded.

"It (the costs) will be for the judge's discretion, but it could be significant ... I would say they'll put their faith in the court to use its discretion to award an appropriate amount of costs," she said.

The daughter of the late frozen food magnate Wallace McCain has said her family wanted to enjoy its privacy. She said beachgoers sometimes left garbage behind, and there were ongoing concerns about fires.

In interviews in 2016, Joshua and Amy Bishop said the local residents had cleaned up garbage left by a group of teens and had been careful in their use of the pathway and the beach. They said that the closing of the pathway was an example of how local Nova Scotians are losing access to the coast.

The issue of access to coastal areas grew after a 2001 study showing 1,800 kilometres of waterfront properties in Nova Scotia had been purchased by people who weren't year-round residents.

However, McCain's lawyers said in written submissions that the original 1867 deed was "vague and unenforceable with respect to the descriptions of the easements or rights-of-way."

It also said there had been a history of trespassing on the properties of the cottage owners for decades, with the cottage of one prior owner burning down in the early 1980s.

It states that in 2001 and 2002, under a previous owner, illegal cannabis was grown on the property and substantial amounts of garbage were dumped, costing about $20,000 to clean up.

The statement of defence by McCain said after 2014 parties involving teenagers took place, and people were using the path with unleashed dogs.

After the dispute became public on Facebook, the affidavit says McCain hired security to "ensure her safety and that of her family, to discourage trespassing and to report trespassing ... to the RCMP."

This report by The Canadian Press was first published Dec. 12, 2019.

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