N.S. judge rules path to Silver Sands Beach near Halifax must reopen

Nova Scotia Supreme Court has ruled a landowner must restore access to Silver Sands Beach in Cow Bay via a path across his property.

But the Halifax-area beach remains closed pending a court order stipulating how this will happen.

"It is clear to me that the respondent finds this easement to be inconvenient and irritating," wrote Justice Denise Boudreau in her decision. 

"He has made many unilateral efforts to rid himself of it; even going so far (and boldly) as to block it altogether," she wrote. "It is also abundantly clear that he should not have done so, and that he had no authority in law to do so."

Path blocked since 2020

The judge's decision states that in 2020 Ross Rhyno locked the gate to the public pathway that connects Silver Sands Beach to a public parking lot on Cow Bay Road. 

A steep cliff at the water's edge makes direct beach access impossible, so Halifax negotiated an easement across Rhyno's backyard when he sold the beach to the municipality in 2003. 

For years the right-of-way has been a source of friction with the public, as Rhyno built walls and fences around it, and banned dogs from the path because owners were failing to scoop up their dogs' waste. 

After failing to negotiate a private solution, Halifax Regional Municipality asked a judge to confirm its authority to reopen the path. 

Refuting landowner's claims

Rhyno made several legal claims about the easement which were abandoned by the time of a hearing in late April, including that the path was never intended for public use.

Justice Boudreau refuted these in detail. 

"That argument would have had no merit whatsoever. It is abundantly clear from the evidence before me that the acquisition of these lands, as well as their connecting easement, was for the benefit of the public in order that they might enjoy use of the beach," she wrote. 

Rhyno also argued that the right of way was legally extinguished because erosion had eaten away the connection between his backyard and the beach. 

Justice Boudreau disagreed. 

"Even if the respondent is correct, and even if the seawater reaches the end of the pathway at high tide, I remain entirely unconvinced that such extinguishes the easement," she wrote. 

Local councillor relieved

Dartmouth South-Eastern Passage Coun. Becky Kent welcomed the ruling. 

"It's a good decision," she said. 

Kent said living without access to Silver Sands Beach for two years has been hard on some people in the community. 

"That was a big loss to them," she said. "And traditionally, for centuries, there's been so much history on that beach. To see it closed off was difficult for people to accept."

Kent said she hopes getting back on the beach will help settle community resentments. 

She hopes the public remembers the pathway crosses private land, and they treat the area with respect.

Reopening possible in 2 weeks

The judge says Rhyno is to "immediately open" the pathway to allow passage for pedestrians and municipal maintenance vehicles as needed. 

But a municipal spokesperson says Rhyno has five days to respond before a judge makes an order giving the decision legal teeth.

"The municipality is hopeful the order will be issued by the end of this week," said Laura Wright in an email statement. 

"If the pathway to the beach is not re-opened within 10 days of the issued order, the municipality will be putting the lack of compliance in front of the Judge," Wright said. 

Wright says the municipality will give Rhyno "a reasonable timeframe" to clear the path. 

"Failing that, the decision authorizes the municipality to do the work itself necessary to re-open the pathway and have Mr. Rhyno responsible to reimburse the municipality for any related costs," she said.  

Rhyno's lawyer, Eugene Tan of the Halifax firm Walker Dunlop, says he is reviewing the decision with his client before making any public comment.