Halifax goes back to court over Silver Sands Beach access in Cow Bay

The municipality is going back to court to try to enforce an order to clear its pathways to Silver Sands Beach in Cow Bay.

Halifax is also seeking damages, saying Ross Rhyno’s conduct has been “high handed, disgraceful, willful, wanton and reprehensible.”

As the Halifax Examiner reported in March 2022, the municipality sued Rhyno for blocking its easement over his property:

Silver Sands Beach is a municipal park accessible only by a right-of-way across private property, starting from the parking lot off Cow Bay Road — the one with the big moose.

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In 2003, HRM bought the land for the moose parking lot and the beach from a company called Silver Sands Realty Ltd., and it negotiated a right-of-way across the company’s property in between to join the two, allowing public access to the beach. It also negotiated an easement with another property owner on the opposite side for emergency and maintenance access.

At that time, Ross Rhyno was vice-president of Silver Sands Realty, and a year later, he conveyed the property ownership to himself. In 2018, Rhyno added his spouse, Amall Hanna Massey, to the deed. Massey died in January 2022, so the property now belongs solely to Rhyno.

Over the past few years, as coastal erosion has thinned out the beach property, public access via the right-of-way over Rhyno’s property has become an issue.

As Richard Harvey, manager of parks policy and planning, wrote in a staff report to council [in 2021], the path to the beach “is being compromised by being increasingly moved beyond the bounds of the municipality’s easement. There have also been conflicts between local property owners and users of the easement.”

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In an affidavit filed in court last [year], Harvey said Rhyno has been blocking the entrance to HRM’s easement, known as Parcel B. Harvey said Rhyno has built fences along the property lines with gates blocking public access on both sides.

“Numerous items of personal property (including construction equipment and materials, an outhouse and other obstacles) have been placed on Parcel B which continue to impede travel along the pathway within HRM’s lawful right-of-way. These obstacles and the fence and chained and locked gate have prevented HRM and the public from accessing the Silver Sands Beach for more than a year,” Harvey wrote in the affidavit.

In June, Justice Denise Boudreau ruled for HRM, as the Examiner reported:

“It is clear to me that the respondent finds this easement to be inconvenient and irritating. He has made many unilateral efforts to rid himself of it; even going so far (and boldly) as to block it altogether,” Boudreau wrote in the decision.

“It is also abundantly clear that he should not have done so, and that he had no authority in law to do so.”

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Rhyno now has to get the path cleared and open “immediately.” If it’s not done “within a reasonable time,” the municipality is authorized to do so on its own. Boudreau retained jurisdiction over the case for 90 days to oversee that process.

In a notice of application in chambers filed March 2, HRM lawyer Randolph Kinghorne asked Boudreau for a new order declaring Rhyno in breach of last year’s.

HRM affidavits detail what’s happened since last year

Kinghorne filed a new affidavit from Harvey detailing what’s happened since Boudreau’s order.

Harvey wrote that “most of the obstructions” were removed. But Rhyno left a chainlink fence across the opening to HRM’s other easement, over land owned by Gordon and Belinda Atkinson.

“We had concern that metal gate would impede HRM’s maintenance and emergency access to that portion of the Silver Sand Beach located on lands of HRM, and which were designated as part of the municipal park (along with the parking lot),” Harvey wrote.

“HRM staff also had a concern that the locked gate might prevent members of the public who had accessed the beach and then become stranded by the incoming tide, from being able to return to the parking lot.”

Rhyno argued fence was on neighbour’s property

Eugene Tan, Rhyno’s lawyer, contacted HRM in June 2022. Tan told Kinghorne that Rhyno believed the fence was on the Atkinsons’ property. He pointed to a Facebook post by Coun. Becky Kent saying HRM had opened the gate, and he accused the municipality of trespassing to perform that work.

“HRM has committed an act of trespass and wilful damage to property for which you have no authority. I anticipate that Mr. Atkinson will be retain my firm to advance this claim forthwith, as he has denied any consent to this act,” Tan wrote in an email included with the application.

Believing the fence was on HRM’s easement, Harvey wrote that in July 2022 staff opened a gate and tied or chained it open. Later that month, Kent reported to staff “that concrete blocks were placed on either side of the gate, the result being that the gate could not be opened without both removing the lock and one of the concrete blocks.”

In August 2022, HRM hired a surveyor who confirmed the fence is on Rhyno’s property, in the easement.

“Based on this information, HRM staff made a request for an HRM work crew to remove the chain link gate,” Harvey wrote.

Municipality moved blocks, then more showed up

In another affidavit, HRM playgrounds and greenbelts supervisor Alan Hirtle reported he was instructed to take a crew to the site and open the access. They did so with a backhoe on Aug. 14, 2022.

“At that location I found that at the corner of the chain link fence which runs beside the gravel road there was a metal gate which was chained with a padlock to the corner of the chain link fence,” Hirtle wrote. “There was a large concrete block pressed up against each side of the metal gate so that the gate could not be opened by simply removing the padlock and chain.”

Hirtle’s photos attached as exhibits show municipal workers moved the blocks.

“The moved items were relocated to elsewhere on the property,” Hirtle wrote.

On Aug. 25, 2022, Hirtle was called back to the property. He said that was in response to information “that the gravel road was again being obstructed.”

Hirtle found the opening was obstructed, this time with five concrete blocks. He also found signage, saying “Private Property,” “THIS WAY TO THE BEACH,” and “NO DOGS ALLOWED.”

In October 2022, Hirtle went to the site again and the opening was still blocked.

“As a result of the nature of the placement of the concrete blocks, HRM doesn’t have heavy equipment capable of safely moving the concrete blocks when approaching from the portion of the gravel road that is accessible to HRM,” Hirtle wrote.

Blocks remained in place last month

In later-February 2023, Hirtle, Harvey, and Kinghorne went to the property with survey plans. They found a survey marker and used nylon rope to create the property line between Rhyno’s lot and the Atkinsons’.

“The location of the concrete blocks was almost entirely on the Parcel B side of the nylon cord,” Hirtle wrote.

Harvey wrote that as of late-February 2023, there are still numerous signs in the municipality’s right-of-way, along with a “gazebo structure and fence next to the HRM parking lot, piles of landscaping materials, and the chain link fence running beside the gravel road/walkway.”

The municipality has tried “to avoid aggravating the situation,” Harvey wrote, focusing on keeping the path to the beach clear “to the extent necessary to permit an emergency response vehicle to have quick access to the municipal park on Silver Sands Beach.” But the municipality, he wrote, “has no reason to believe that the Respondent will not continue to undermine HRM’s use and the public’s enjoyment of the Parcel B easement to the Silver Sands Beach.”

“The HRM parking lot, the Parcel B easement and the HRM beach lot, together are components of one municipal park, which the public should feel comfortable in using. In addition to placing items to restrict the public movement on the Parcel B easement, the Respondent has placed signage of a nature designed to make the public feel uncomfortable using the easement,” Harvey wrote.

“For this reason, HRM has continued to object to the Respondent posting signage related to the use of the easement, and is asking that the Court again direct the Respondent to remove same.”

HRM seeks order declaring Rhyno in breach

In Kinghorne’s filing, he made a multi-faceted request of Boudreau to get Rhyno to remove all obstructions and signage within five days.

Kinghorne also noted Rhyno was supposed to pay $1,000 in costs ordered last year and hasn’t done so. He’s seeking aggravated damages now, with interest back to August 2022. That’s because, he alleged, “the conduct of the Respondent has been high handed, disgraceful, willful, wanton and reprehensible.”

Rhyno has yet to respond to the filing via Tan. There’s a hearing scheduled in the case for April 24.