Cite as: MacKay v. J.D. Ross Construction Ltd., 1987 NSCA 26 IN THE SUPRE.HE COURT APPEAL DIVISION Jones, Macdonald and Matthews, JJ.A. BETWEEN: MALCOLM MACKAY and CLAUDIA MACKAY Appellants - and - J.D. ROSS CONSTRUCTION LIMITED Respondent THE COURT: Appeal dismissed with costs to the respondent to be taxed per reasons for judgment of Jones, J.A.; Macdonald and Matthews, JJ.A. concurring. S.C.A. No. 01686 OF NOVA SCOTIA J Richard A. Murtha for the appellants W. Brian Smith for the respondent Appeal Heard: February 10, 1987 Judgment Delivered: March 4, 1987
JONES, J. A. : This is an appeal from lien action. J.D. Ross Construction constructed a house for the On January 3, 1985, Ross Construction filed for $12,7 00.00 being the balance agreement. The statement of the appellants. A defence was solicitor for the appellants. that the appellants owed any money to Ross Construction. A meeting was held solicitors on April 15, 1985. w6uld pay $12,000.00 in trust to their solicitor in settlement of the claim and payable to Ross Construction upon satisfactory repair of a leakage problem in the basement of the home. On June 17, 1985, Mr. solicitor for Ross Construction my trust account the sum of have a further $2,000.00 on or before the end of June". Construction commenced the remedial 1985, Mr. Smith wrote to Mr. remedial work had been completed of the funds. In a subsequent telephone conversation Mr. advised Mr. Smith that he did not have any funds in the trust a judgment in a mechanics 1 Company (Ross Construction) appellants at Lower Sackville. a mechanics 1 lien due under the construction claim was served personally on filed by Mr. Robert Cragg as The defence was a simple denial between the parties and their It was agreed that the appellants Cragg wrote to Mr. Brian Smith, stating "that I have now in $10,000.00 and would expect to Ross work. On December 3, Cragg advising him that the and requesting the payment Cragg
- account in respect of the claim. Mr. MacKay, one for $9,000.00 dated June 10, for $1,000.00 dated June 13, MacKay advised Mr. Cragg that his account. On January 27, :986, Court for an order fixing a date for the trial of the mechanics' lien action. On February 4th, on Mr. Cragg for February 14, Mr. Cragg advised Mr. Smith that to judgment. When Mr. Smith to trial, Mr. Cragg advised a copy of his file and would trial. The matter was tried February 14. No one appeared Mr. Smith stated to the Court: "There had been an indication was the solicitor, according still is the solici t~or for not going to be acting for MacKay was acting for himself. me the day before yesterday that he his file and given it to didn't anticipate that anyone was going to be here." Mr. Cragg was still appellants. Ross Construction proceeded judgment was entered for $14,245.89. 2 Two cheques received from 1985 and a second 1985 were not deposited as Mr. he did not have the funds in Mr. Smith applied to the County he served a notice of trial 1986. On February 12, 1986, he was prepared to cons~nt advised that he was proceeding Mr. Smith that Mr. MacKay had be acting for himself on the before Anderson, J:c.c. on on behalf of the appellants. from Mr. Cragg who to the records, and Mr. MacKay that he was Mr. MacKay and that Mr. Mr. Cragg had told had photocopied Mr. MacKay. Urnrn he solicitor of record for the to prove the claim and A copy of the order
- was subsequently served on Mr. Mr. MacKay made an assignment September 5 and September 19, 1986, Ross Construction published a notice of sale of the appellants' judgment. Affidavits were filed they claim they never received notice first informed of the order on August 29, 1986, when a neighbour brought the notice of sale in the newspaper to their attention. The following paragraphs filed by Mrs. MacKay sworn September 22, 1986: "THAT on or about the 14th a Notice of Trial was issued the Respondent and forwarded G. Cragg, and other interested of the said Notice is annexed to this and marked as Exhibit: "1". of that Notice until very recently when obtained from the court file. THAT a trial was held on the 14th day of February, 1986, at the hour of 9:30 o'clock in the forenoon. In attendance was the counsel the Respondent and a Construction Limited. I nor did my husband, ncr did our solicitor, Mr: Cragg. THAT I did not attend the hearing of the trial because I was not informed of hearing. Had I been so attended with my husband or witnesses would be and complete hearing of the dispute, which I maintain has to this day continued. THAT I am informed, having hearing obtained from the Court file of this matter, that the Court was advised Respondent that our solicitor file and given it to my 3 Cragg. On February 28, 1986, in bankruptcy. On August 2 2, home pursuant to the by the appellants in which of the trial and were are from the affidavit day of February, 1986, by the solicitor for to my lawyer, Robert parties. A copy my Affidavit I never received a copy a copy was for the Respondent, witness for J.D. Ross did not attend the trial, the date and time of the informed, I would have and whatever other witness required to effect a full read the record of the by counsel for the had photocopied his husband. Mr~ Smith was
- informed that Mr. Cragg for us and he did not expect anyone would be present. I have never received notification that he was not acting as our counsel in this matter. I have never received, received to the best of and belief, a copy of our file enclose herewith page 1 matter and humbly direct lines 6 through 13, a copy of which is annexed hereto and marked Exhibit '2' have never received, nor has my husband ever received to the best of my knowledge, a copy of the Notice of had I received such notice, I would have attended at the trial dated 14, 1986. THAT following the trial was prepared on the 27th setting out a judgment in favour of the Respondent. The Order was directed to counsel only received a copy of this to the best of my knowledge, Had I received a copy of this acted upon it before now. is annexed hereto and marked as Exhibit '3' to this my Affidavit." On September 15, application in the County Court to set aside the order. application was dismissed for September 22, 1986, the appellants from the original order. Morrison, J.A. granted the appellants leave to appeal and issued a to the order. On February 3, 1.987 notice to Mr. Cragg that on the hearing of the appeal, "the Respondent herein seeks by way of costs on a solicitor and hi~ client basis". 4 was not going to be acting from Mr. Cragg nor has my husband ever my knowledge, information on this matter. I of the decision in this the Court's attention to to this my Affidavit. I information and belief, Trial on this matter and as stated previously, February of the matter, an Order day of February, 1986, and I never Order, nor did my husband information and belief. Order, I would have A copy of the said Order 1986 the appellants made an The lack of jurisdiction. On filed a notice of appeal stay of proceedings in relation the respondent's solicitor gave relief in this matter
- Mr. Cragg appeared representations in the matter. an affidavit which he has now affidavit that he informed Mr. June 18th, 1985 that he did not account to cover the two cheques. he advised Mr. Smith several times during the month of December, 1985, that he was no longer acting for the appellants, although he did not file a notice of states that he advised Mr. MacKay that he would not be acting to Mr. Cragg, Mr. MacKay acknowledged the respondent. A further affidavit behalf of the respondent. Attached is a copy of a letter that Mr. December 20, 1985. The letter provides as follows: "I had expected to hear from you on Monday, 16, 1985, following our December 13, 1985 respecting has arisen with respect between our clients in which arose out of the construction of your client's personal residence by ~T.D. Ross Construction Limited. As you are aware, the situation was by my client undertaking leaks in Mr. MacKay's residence, would only be undertaken had received confirmation were in your hands and satisfactory completion correspondence of June 17, me that you were in receipt agreed sum and it was upon this basis that Mr. 5 -on the appeal and made He was given time to file done. Mr. Cragg states in his Smith by telephone on or about have the funds in his trust Mr. Cragg also states that change of solicitor. He also of the date of trial and for the appellants. According owing $12,000.00 to was filed by Mr. J.D. Ross on to Mr. Ross' affidavit Smith wrote to Mr. Cragg on December conversation of Friday, the difficulty which to the settlement reached the amount of $12,000.00, to be resolved the repair of basement but that repairs at such a time when we that in fact the moneys held in trust until the of the work. In your 1985, you confirmed to of $10,000.00 of the Ross
- commenced and concluded MacKay's home. I confirm the work has been concluded MacKay has informed Mr. Ross of his satisfaction. I wrote to you on December 3, 1985 respecting payment of the $10,000.00, however to that correspondence. During our conversation you indicated that Mr. returned from the Bank N. S. F. received these cheques within That explanation is not acceptable. cheques been returned by your letter of June 17, had an obligation to inform that Mr. Ross would not detriment with respect to were it not for your confirmation that were held by you, my client would not have returned to Mr. MacKay's residence myself and Mr. Ross representation and I must when I find that the payment has not been forthcoming as previously agreed. Consequently, it is imperative that your cheque be received later than noon on the 23rd Should your cheque not be time, I have been instructed to founded in breach of an contract and negligent mis-statement. Additional affidavits of the appellants. These affidavits dispute between the appellants say they contradict Mr. Cragg's conclusions which I have :reached appeal itself the dispute as to case has become largely redundant. With respect to the the appellants raise the following issues: 6 the remedial work at Mr. your advice to me, that satisfactorily. Mr. have not had a reply of Friday, December 13th, MacKay's cheques had been and that you had only the last few days. Had Mr. MacKay's the bank shortly after 1985, it is clear that you me of that fact, so proceed to his further the remedial work. For the moneys to do any work. Both have relied on your say that I am outraged by this office not day of December, 1985. received by us at that commence an action undertaking, breach of Please oblige." have been filed on behalf deal largely with the and Mr. Cragg. Needless to evidence. In view of the regarding the merits of the Mr. Cragg's position in this merits of the appeal itself
- " ( 1) Whether the learned trial in hearing the action between having been advised that represented by counsel and whether in not directing that a copy of the order for judgment be served on the Appellants personally; (2) Whether the Respondent was set down had the! legal action in that the Respondent by the Registrar of Joint 26th day of May, 1986, fees." With respect to the first ground of appeal sections 33(1) and 35 of the Mechanics' 178 provide: "33(1) The liens created by this Act may be enforced by an action to be brought court of the county court lands are situated, whether over fifty thousand dollars to the ordinary procedure where the same is varied by this Act. 35 The party who obtains the day and place of trial, clear days before the day fixed for the trial, serve a notice of trial, which Schedule, or to the like effect, for the defendants who upon all lien holders who liens as required by this persons having any re~gistered charge or [encumbrance] or claim on not parties, or, who being parties, appear personally in the said action, and such service shall be personal unless otherwise directed who is to try the action, may, in lieu of personal manner the notice of trial shall be served." To summarize s. 33(1) procedure of the court shall service of the notice of trial on the solicitor on the record. 7 - judge erred in law the parties, after the Appellants were not he further erred at the time the sale capacity to carry this company was revoked Stock Companies on the for non-payment of annual Lien Act, R.S.N.S. 1967, c. and tried in the county district in which the the amount claimed is or not, and according of such court, except an appointment fixing shall, at least eight may be in Form J in the upon the solicitors appear by solicitors, and have registered their Act, and upon all other incumbrance the said lands who are by the court or judge and the court or judge service, direct in which provides that the ordinary apply and s. 35 provides for
- Rule 10.12 of the Civil Procedure personal service is not required, by leaving the document or a of a party's solicitor. Rules 44.01(1) and 44.06(1) provide as follows: 44.01(1) A party who sues or defends by a solicitor may change his solicitor without an order, but until notice of the change is filed with the prothonotary and served on every o·ther party, the former solicitor shall, subject to rules 44.05 or.44.06, be considered the solicitor of the party of the proceeding. 44.06(1) Where a solicitor, party in a proceeding has party has not given notice of with rule 44.01, or notice person in accordance with rule may apply to the court for he has ceased to be the party, and the court or case may be, may so order, the solicitor files t:he order with the prothonotary and serves a copy of the order on solicitor shall be considered party until the conclusion of the proceeding." In P.P.G. Industries Ltd. v. Ltd. et al 138 D.L.R. (3d) delivering the judgment of this Court I stated at p. 714: "Under the provisions of R.S.N.S. 1967, c. 64, the jurisdiction of the county court in contract and in limited to $50,000. Section Act provides: '47 Except where it is otherwise provided: (a) the practice and procedure; and (b) the process and in the title of the court, officer of the court, 8 -Rules provides that where a document may be served copy at the address for service until the conclusion who has acted for a ceased so to act and the change in accordance of intention to act in 44.04, the solicitor an order declaring that solicitor acting for the Appeal Division, as the but unless and until every party, the the solicitor of the J.W. Lindsay Enterprises a mechanics' lien action, in the County Court Act, actions for damages is 47 of the County Court forms, with such changes and the style of the and such other changes as
- are necessary to make applicable to the conditions of a county court; which for the time being are prescribed for similar actions and matters, and in the Supreme Cou.r:t, in every county court in actions and matters within the limits of its j~risdiction.' On March 1, 19 7 2, the Nova Rules came into force. Rule 1.02 provides: '1.02 These Rules govern the Supreme Court and a an enactment otherwise provides.' By virtue of s. 43 of the Judicature Act, 1972 (N.S.), c. 2, the rules have the force of law." There is no question accepted service of the notice appellants. Neither Mr. Cragg action to bring about a change The following passage is from Williston and Rolls at p. 61: "In taking proceedings, authority of his client; that a solicitor who acts so unwittingly. Accordingly, if he takes or continues proceedings on behalf authority, those proceedings he will be ordered to as between a solicitor with any costs which the plaintiff might ordered to pay the defendant additional costs as between client. If a solicitor has been defendant without authority, struck out and a converse to costs. If the solicitor has wilfully acted without authority, he may also be made subject to attachment or committal-, and, in an action for damages 9 such process and forms under like conditions, shall apply and be adopted Scotia Civil Procedure every proceeding in County Court except where in this case that Mr. Cragg of trial on behalf of the nor the appellants took any of solicitor on the record. The Law of Civil Procedure by a solicitor warrants the it makes no difference without authority does of a plaintiff without will be stayed, and pay the plaintiff's costs and his client, together have been and the defendant's a solicitor and his purporting to act for a the defence will be order will be made as addition, he is liable to for breach of warranty of
- authority." The authors further state at p. 99: "A solicitor has great latitude in deciding whether he should act for a client, to do so if there is any his opinion, justifies his accepted the retainer, however, without just cause. In Master (Marriott) held that to make out a prima facie case before an order that he has ceased to act should be granted." Both in fact a:nd in solicitor for the appellants proceedings in the mechanics' lien action. of the Mechanics' Lien Act~ the respondents were only required to serve the solicitor with notice so they were entitled to proceed to judgment. Court Practice 1982, Vol. 1 at p. 1153). In Lady De La Pole application was made to vary gone abroad and it was impossible to serve him with the order. The question was whether the of Appeal could be served on his solicitor. claimed they had ceased to act L. J. in delivering judgmE!nt at p. 356: "The neglecting to change a solicitor when he ceases to act does not discharge down in Lawrence v. Harrison which we may act. He says, whether the warrant of the judgment given in 10 and is not obligated proper reason which, in refusal. Once he has he cannot withdraw Ely v. Rosen, the Senior a solicitor is required law Mr. Cragg continued as until the conclusion of the Under the provisions of trial and having done ( See The Supreme v. Dick (1885) 29 Ch.D. 351 an the order. The defendant had notice of motion in the Court The solicitors for the defendant. Cotton, in the Court of Appeal stated him. Rolle, C. J. , lays (2) a principle on 'The only question is, attorney be determined by the suit wherein he was
- retained; and I conceive it is is not determined, for the attorney after the judgment is to be called to say why there should not execution be made out against his client, to defend his clien~ as execution 1 • According to the judgment has been worked imposed on the solicitor his client against any the purpose of enforcing time, therefore, the solicitor be taken, as between him to represent the cliemt, discharges him but substitutes on the record ... In view of the provisions Act and the Rules of Civil Procedure appellants can now be hea:rd to say that they did not receive notice of trial in this action. the facts of this case would the Act nugatory. I would dismiss the first ground of appeal. With respect to the without merit. At the time of was entered the respondent company was subsequently suspended for This has now been rectified. In the result the costs to the respondent to entitled to proceed with the Counsel have advised that there has to cover the judgment. In view of the result the application for costs by the respondent 11 not, for the suit and he is trusted far as he can from the that principle, until out, there is a duty on the record to defend improper steps taken for the judgment. Until that on the record must and the opposite party, unless the client not only another solicitor of the Mechanics 1 Lien I do not think that the To permit them to do so on be to render the provisions of second ground of appeal it is the action and when judgment was in good standing. It non-payment of annual fees. appeal must be dismissed with be taxed. The respondents are enforcement of the judgment. been a payment into court against Mr. Cragg is dismissed.
- 12 -Whether the appellants have a right of recovery against their solicitor for any loss they may have suffered is not before the Court at this time. 1 ""'// Concurred in: 1 ' 1 Macdonald, J.A.~~ ~ , · Matthews, J.~~~
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.