Queens County residents sue former Halifax mayor Peter Kelly over access to path

A battle pitting a group of neighbours in Queens County against a former Halifax mayor over a long-used pathway has arrived in court.

More than two dozen Eagle Head, N.S., residents have signed on to a lawsuit against former mayor Peter Kelly and Diana Girouard in legal action filed in the Supreme Court of Nova Scotia on Oct. 7.

Kelly and Girouard bought a two-hectare waterfront property on Eagle Head Road last September. They stirred up local controversy when their beachside development drew protests from people concerned about its environmental impact.

The development permit was revoked in July.

But the October court claim is specifically about Kelly and Girouard denying public access to a portion of a "well-marked and commonly recognized right of way" across their property. The lawsuit was first reported by AllNovaScotia.com.

Last October, soon after the pair bought the property, one of the plaintiffs told Kelly the pathway was regularly used by locals as a right of way, the claim states.

"Kelly replied, 'Not anymore,'" according to the claim.

After that incident, Kelly and Girouard have allegedly denied access to the pathway, and there have been "several incidents" in which either Kelly or one of his contractors have told local residents not to use it.

On "more than one occasion" Kelly asked police to stop the plaintiffs from using the path, the claim says.

According to the claim, this pathway has been used by the plaintiffs, and generations of community members, to travel between Eagle Head Wharf Road and Eastern Shore Road to access the local beach, wharf, visit neighbours and attend school and church. 

The claim says Kelly and Girouard began pouring concrete at the end of September as part of a "construction effort" that will create a structure blocking the pathway — unless stopped by the court.

Earlier this summer, large boulders were put up to block the path from the road leading to it. Nearby signs told people to keep out, and labelled it private property.

But the group of plaintiffs have "well-established rights of way" that should be upheld, the claim states.

It states their properties are the dominant areas entitled to the benefit of the pathway easement, and "runs with the ownership of their lands."

The claim says various sections of the Real Property Limitations Act, the Public Highways Act, and the Land Registration Act support the residents' case, since the path is an "overriding interest" in Kelly's property that is being used and enjoyed, as well as being a common and public highway.

The pathway crosses over a stream that is spanned by a foot bridge that was "initially funded by government" and used for vehicular traffic, the claim says. In recent years the community has maintained the bridge, and it's been used by small vehicles like ATVs and dirt bikes.

The plaintiffs said locals have used the pathway in a continuous "open and peaceful manner" for well over 20 years without permission from the prior owners of Kelly's property, who still allowed pathway access — until Kelly and Girouard arrived.

Brian Casey, the lawyer representing Kelly and Girouard, said in an email Friday that he didn't have a copy of the claim so "we're not really in a position to comment."

But Kelly and Girouard don't know what the history was in the 20-year period before the property was registered in 2010, Casey said, and "no one can obtain a right of way of this sort after registration unless they are an adjacent property owner."

Casey said his clients have a warranty deed from the former owners, so the dispute is really between those who claim a right of way over the property and the people who sold it to Kelly and Girouard.

"If there is a right of way, that's a problem that the vendors need to pay for," Casey said.

The plaintiffs are asking for various remedies from the court, including monetary damages, a declaration that the pathway be recognized as a common and public highway, and an easement protecting the path's use by the plaintiffs and the land owners to come after them.

They also asked for a mandatory order requiring Kelly and Girouard to remove any obstruction on the pathway, and an injunction preventing them — or those working for them — from harassing or limiting the plaintiffs or any public citizen from using the path now and into the future.

Lawsuit latest in string of controversies

Kelly and Girouard have until Oct.22 to file a notice of defence with the court.

Controversy has followed Kelly over the years since he left the mayor's office in 2012 following the Halifax Common concert scandal and criticism over how he handled his role as executor of the estate of a Bedford woman.

Kelly then worked for a time as CAO for a municipality in northern Alberta — which said Kelly spent hundreds of thousands of dollars in municipal funds without the knowledge or approval of council.

In 2016, Kelly became Charlottetown's CAO but was fired this May after two of his former deputies claimed they were fired when they came forward with concerns about the city's administration and finances.