NOVA SCOTIA COURT OF APPEAL
Citation: Sheetharbour Offshore Development Inc. v. Tusket Mining Inc.,
2007 NSCA 59
Date: 20070511
Docket: CA 258749
Registry: Halifax
Between:
Tusket Mining Incorporated, a body corporate
Appellant
v.
Sheetharbour Offshore Development Inc.,
a body corporate
Respondent
Judges: Roscoe, Saunders and Fichaud, JJ.A.
Appeal Heard: May 11, 2007, in Halifax, Nova Scotia
Held: Appeal dismissed, as per reasons for judgment of Saunders, J.A., Roscoe & Fichaud, JJ.A. concurring
Counsel: David P. S. Farrar, Q.C., for the appellant
John T. Rafferty, Q.C., for the respondent
Reasons for judgment:
[1] After considering submissions, we announced our unanimous decision that the appeal was dismissed with reasons to follow. These are our reasons.
[2] Sitting in special Chambers, Nova Scotia Supreme Court Justice Donald M. Hall enjoined the appellant from selling a 100 acre parcel of land at Sheet Harbour, pending a trial on the merits. The respondent has sued the appellant claiming damages and specific performance of an agreement of purchase and sale, coupled with execution and delivery of a deed conveying title to the property in question.
[3] The appellant attacks the decision of the Chambers judge on several fronts. With respect, we see no merit to any of the appellant’s submissions. Each can be addressed summarily.
[4] Our role in a case such as this is limited. This is an appeal of an order granting the respondent an interlocutory injunction. It involved Justice Hall’s exercise of discretion. His authority to grant an injunction is found in s. 43(9) of the Judicature Act, R.S.N.S. 1989, C. 240. Its grant or refusal is described in Civil Procedure Rule 43.01(4). We will not interfere with an interlocutory, discretionary order unless wrong principles of law were applied or a patent injustice would result. Eikelenboom v. Holstein Assn. of Canada, [2004] NSCA 103.
[5] In attempting to rescind the order and lift the interlocutory injunction imposed by the Chambers judge, Tusket faces a difficult task. Any appellant who appeals an interlocutory and discretionary order carries a heavy burden. Minkoff v. Poole (1991), 101 N.S.R. 2(d) 143 (N.S.C.A.); and Hapi Feet Promotions Inc. v. Martin (2005), 232 N.S.R. 2(d) 359 (C.A.).
[6] The application before Hall, J. required him to conduct a three-step analysis. First, he had to be satisfied that in bringing its application to prevent the appellant from selling the property to a third party, the respondent had demonstrated that there was a serious question to be tried. Second, the respondent needed to convince Justice Hall that it would suffer irreparable harm if he were to refuse the sought-after relief. Third, the Chambers judge had to conduct an assessment of the balance of inconvenience. RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[7] We are entirely satisfied that Justice Hall carefully assessed the evidence, conducted a proper but necessarily extremely limited review of the case on the merits, and applied the law correctly in answering all three branches of the test in RJR - MacDonald.
[8] It should be remembered that in considering this first branch of the three-step analysis the threshold is a low one. Hall, J. was only obliged to undertake a preliminary assessment of the merits of the case. On the record before him, it was certainly open to the Chambers judge to find, as he did, that there was a serious question to be tried. That is to say, it was a case where Sheet Harbour was entitled to have its claim heard in order to determine, inter alia, whether there was an enforceable agreement of purchase and sale, and whether specific performance might be ordered. Hall, J. did not err in deciding that whether there were sufficient acts of part performance as to exclude the operation of the Statute of Frauds, R.S.N.S. 1989, c. 442, or whether the subject property was so unique and vital to the respondent’s interests as to justify the remedy of specific performance, were questions that deserved to be addressed on their merits with the benefit of a full trial. Semelhajo v. Paramadevan, [1996] 2 S.C.R. 415.
[9] Once satisfied that Sheet Harbour’s application was neither frivolous nor vexatious, Hall, J. then went on to consider the second and third steps in the analysis.
[10] In addressing the issue of irreparable harm, Hall, J. said this:
[36] It seems to me that, in so far as the plaintiff is concerned, there is no alternative land or facilities available for it to pursue its plans for expansion and development of new business opportunities. As well, I am of the view that it would be impossible to make a realistic assessment of the potential losses to the plaintiff if the property were to be disposed of to another.
[37] The defendant points out that the plaintiff has not established firm business relationships in connection with its proposed use and development of the land at this time. Indeed, it would not make good economic sense for the plaintiff to expend time and resources in pursuit of such at this juncture since the plaintiff has no assurance that it will be successful in obtaining the land. It is evident, however, that there is a realistic potential for significant profits as suggested by the plaintiff, although not readily quantifiable. In my opinion, therefore, the plaintiff would suffer irreparable harm if the land were to be sold to another party.
We see no error in Justice Hall’s conclusion, or the reasoning that led to it.
[11] Finally, in considering the third branch of the test, Hall, J. said this:
[41] In my opinion the balance of convenience strongly favours the plaintiff. As counsel stated, if the land is disposed of before the merits of the case are decided and if the plaintiff is ultimately successful, the potential benefits will have been lost to the plaintiff forever. On the other hand, the defendant may lose an advantageous sale. There was no evidence presented to indicate that such a sale is contemplated at this time nor in the immediate future. In any event, there was nothing put forward to suggest that the inability to sell this 100 acre parcel of land at this time would impede the sale of the remaining 5600 acre parcel of land. In view of the circumstances here, I am of the opinion that the status quo should be maintained until the merits of the case can be finally determined.
[42] Accordingly, I will grant the relief requested and order that the current injunction be continued until further order.
Once again, there is nothing in Justice Hall’s analysis that would justify our intervention.
[12] In conclusion, Justice Hall was correct in his application of the law. None of his findings, or inferences drawn from those findings, were the result of palpable and overriding error. Housen v. Nikolaisen, [2002] 2 S.C.R. 235.
[13] The respondent is entitled to have its action and claims for relief tried on their merits. We therefore dismiss the appeal and fix costs of $1,500 plus disbursements to be payable in the cause.
Saunders, J.A.
Concurred in:
Roscoe, J.A.
Fichaud, J.A.