Cite as: Sharon Sales Ltd. v. South Shore Development Ltd., 1971 NSCA 1 CASE NOo VOLUME NO. PAGE 1970 S. C. No. 16184 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BEl\lEEN: SHARON SALES LIMITED, a body corporate, Appellant (Plaintiff) - and -SOUTH SHORE DEVELOPMENT LIMITED and MONTREAL TRUST COXPANY Respoil'lldents (Defend:mts) HEARD at Halifax, Nova Scot ii, before the Honourab1e Chief Justice McKinnon, the Hono~rable Hr. Ju1tlce Coffin and the Honourable Mr. Justice Cooper of the Appeal Dlvi~lon; Jan. 18, 1971 ORAL OPINION January 18, 1971 COUNSEL Douglas A. Caldwell, Esq. Appel )ant George Wo MacDonald, Esq. Respondents Statement of claim, M~chanics' lien Act Oo XIX., r. 4; Oo U.'VHI, r. I, "fbe Judicature Act, 1950
1970 S. C. No. 16184 IN lliE SUPREME COURT OF NOVA SCOTIA APPEAL DIVIS~ON BElllEEN: SHARON SALES LIMITED, a body corporate, Appe11 ant (Plaintiff) - and -SOUTH SHORE DEVELOPMENT LIMITED and MONTREAL TRUST COMPANY Respondent (Defendants) [ oral opinion) Th Is is an appea 1 from the clec is ion of His Honour Judge Ro Clifford Levy, Judge of the County C~rt for Otstrict Numb~r Two, dated the 1st day of December, 1970, and fran an order granted pursuant to that decisi.on vacating the reghtratio" of a claim of I Jen dated the 14th day of December, 1970. The facts as contained in the subnission of the appellant are as fo 1l ows: "On the 17th day of April , 1970, a Claim of Lien for Registration, signed by Wo Alton Snow, os President of the Appel I.mt Comp.ony, was re9iste1·ed in the Registry of Deeds Off Ice at Liverpool, No So, along with the Affidavit of Verification of Wo Alton Sno:.t,, claiming a Lien on certain property, pursuant to tho Mechanics' Lien Act, R.S.N.S., 1967, Co 1780 [ 1 J
ment On the 14th day of July, 1970, a StateAof Claim in the action was filed with the Cl~rk of the County Court for District Number Two in Liverpool, No So, together with a Certificate of Lis Pendens. lhe Statement of Claim was dated the 13th day of July, 1970, and was signed a5 follows: I .~d.) o. e. CaldweJJ. Douglas Ao Caldwell Jones, Milford & freeman Po Oo Box 820 Liverpool, Nova Scotia Subsequently a Notice of Motion to vacate the registration of a Claim of Lien, signed by the Sol ~citor for the Respondent, South Shore Development Limit,1d was served upon Mr. Gerald Bo Freeman, Solicitor for the Appellant Company. The Not Ice of Mot ion ,-.as dated 0111 the 23rd day of October, 19700 In his Affidavit in Support of the Motion, the Respondent's Solicitor, alleged inter .!!l!. that Douglas A. Caldwell, who signed the Statement of Claim, was not at the time of the signing of thEi Statement of Claim, a Barrister or Solicitor entitled to practice in the Province of Nova Scotia, aod that, as the Statement of Claim was not signed by the Plaintiff (Appellant)J> nt was invalid according to the pr'ovisions of Order XIX, Rule 4 of the Rules of the Supreme Court. The Appelklnt 1 s Solicitor, Mro .Gerald Bo Freewan., in hls Affidavit dated the 2nd day of November, 1970, opposir>g the motion, acknowledg,ad that Dougla!t Ao Caldwell signed the Statement of Claim In the actioO'!I and that Dougla:. Ao Caldwell w2s, at the time, an articled clerk practfcin<J with the firm of Jones, Milford & Freeman and of t.41ich Mr. Frct'llnaru was a partner. Mr. Freeman further alleged that he du1y authorized Douglas Ao Caldwell to sign t~e St~tanent of Claim as his Agent or Attorney and on his behalf, as Solicitor for the Plaintiff (Appellant)o In rendering his decision on Dec:ember 1st:., 1970., His Honour Judge Levy said: 'I am of the opinion that the failure of the signing of the Statement of Claim by the. Plaintiff's Solicitor affect~ the ~4,olc substance of the cla1m to the extent that it is incurable. Without the conmencement of the action there can be nothing to emendo It is not a question of an irregularity tha~ is curable.• 11 [ 2 ]
After carefully reviewing the record herein and consider• Ing the representations of counsel for the appellant and respondent,, it appears to us that the Respondents have not been misled nor substantially Injured by the appellant's non-canpliance with Order XIX, rule 4 of .I!:!!. Judicature Act, 1950, and we are of the opinion that this finding Is supported by the decision of Middleton, J., In Bank of Hamilton v. Baldwin, [1913] 12 D.L.R. 232, where he is reported in part as follows [23S] : "Little purpose would be served by the citation of Instances In which the Court has exercised Its remedial jurisdiction. The gener~I principle underlying a11 the cases is, that the Court should amend where the opposite party has not been misled or sub-stantla11y injured by the erroro" It Is the opinion of the C<>l!rt that the statement of claim stands as from the date of issue, notwithstanding that it was not signed by the then solicitor of the appe 1ant on that date; the statement of claim Itself remains effective as from the date of Issue. The appeal is allowed with the ~ese being referred back to the Court below for trial on the 11erits; the r~spondents wiil have the costs of this appeal. DATED at Halifax, Nova Scotia, this 18th day of Ja~uary, A. D., 1971. A''\ H. McKinnon ] CHIEF JUS'fiCE OF NOVA SCOTIA ·, • H. Coff In] A JUSTICE OF TiiE APPEA [A. G. Cooper] A JUSTICE OF THE APPEAL DIVISION [ 3 ]
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