Cite as: Smith's Field Manor Development Ltd. v. Halifax (City), 1988 NSSC 15 S.H. N o . 62006 IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN : SMITH'S FIELD MANOR DEVELOPMENT LIMITED
P l a i n t i f f - a n d -CITY OF HALIFAX
D e f e n d a n t HEARD : a t H a l i f a x , Nova S c o t i a , b e f o r e t h e H o n o u r a b l e M r . J u s t i c e J o h n M . D a v i s o n , i n C h a m b e r s , o n Monday, May 9 t h , 1 9 8 8 DECISION : J u n e 1 6 , 1 9 8 8 COUNSEL: C h a r l e s D . L i e n a u x , E s q . , f o r t h e P l a i n t i f f Wayne A n s t e y , Q . C . , f o r t h e D e f e n d a n t
IN TEE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN : SMITH'S FIELD MANOR DEVELOPMENT LIMITED
- and -CITY OF HALIFAX
DAVISON, J.:
T h i s i s an a p p l i c a t i o n Defence of t h e Defendant p u r s u a n t t h e grounds t h a t it is f a l s e , i t w i l l p r e j u d i c e o r d e l a y t h e I n t h e a l t e r n a t i v e , t h e P l a i n t i f f Rule 13 .01 , g r a n t i n g summary judgment. HISTORY OF TEE PROCEEDINGS
On t h e 6 t h day of J u n e , t o a judge i n Chambers f o r a n Order t o r e q u i r e t h e Development O f f i c e r i s s u e a Munic ipa l Development P e r m i t S.H. No. 62006 P l a i n t i f f Defendant f o r an Order s t r i k i n g o u t t h e t o Rule 1 4 . 2 5 ( b ) and ( c ) on f r i v o l o u s and v e x a t i o u s o r t h a t f a i r t r i a l of t h e p r o c e e d i n g s . s e e k s a n O r d e r , p u r s u a n t t o 1987 , a n a p p l i c a t i o n was made i n t h e n a t u r e of a mandamus of t h e C i t y of H a l i f a x t o and t o r e q u i r e t h e B u i l d i n g
Inspector of the City of Halifax to issue a Building Permit in
respect of a development in which the Plaintiff had an interest.
Specifically, the Originating Notice set forth the following:
The Plaintiff claims an Order of the Court in the nature of Mandamus compelling the City of Halifax to issue to H. W. Corkum Construction Limited a Municipal Development Permit and a Building Permit to authorize Smith's Field Manor Development Limited to proceed forthwith with construction of a 14 unit senior citizens' apartment building valued at $ 2 , 8 0 0 , 0 0 0 . 0 0 at 5266 - 5270 Green Street in the City of Halifax. The application was refused by the Chambers judge and
the Plaintiff herein appealed to the Appeal Division of our court.
The Appeal Division allowed the appeal and an Order issued on
the 11th day of February, 1988, requiring the appropriate officials
of the City of Halifax to issue the Municipal Development Permit
and the Building Permit.
On the 28th day of September, 1987, a second action,
the one of which this proceeding forms a part, was commenced
whereby it was alleged that various officers of the City of Halifax
owed a duty to the Plaintiff and acted negligently and in bad
faith by refusing permits. The Plaintiff claimed damages from the City which related to alleged losses incurred by reason of the delay in the issue of the permits. On November 30th, 1987, the City filed an extensive
Defence. It should be noted that at this time the City's position
was bolstered by the decision of the Chambers' judge and the
decision of the Appeal Division had not been rendered.
On the 24th day of March, 1988, after the decision
of the Appeal Division, the Plaintiff amended its Defence which
document incorporated some of the findings of the Appeal Division
and added further items of damage including general damages for
loss of reputation and business interruption.
On the 3rd of April, 1988, the City filed a Defence
and raised the defence of res judicata. By the time of the hearing
before me, the City stipulated that the only defence on which it relied was the defence of -res judicata which is more particularly set forth in the ~efenced ocument as follows: 6. The Defendant further says that the
issues involved in the mandamus application
are the same as the issues raised in this
action, namely whether the Development Officer
of the City of Halifax and the Building
Inspector of the City of Halifax wrongfully
withheld a municipal development permit and
a building permit, respectively for the
Plaintiff's Development.
7. Based on the allegations contained in paragraphs 5 and 6 of this Defense, the Defendant says that the Plaintiff should have made its claim for damages at the same time as it made its claim for the order in the nature of mandamus and says further that any claim for damages up to the date of the decision of Court of Appeal is merged in the judgement and is res judicata.
APPLICATION FOR SUMMARY JUDGMENT - RULE 13.01 Before granting an Order for summary judgment, I must
be satisfied that there is no fairly arguable point to be argued
on behalf of the Defendant: Carl B. Potter v. Anti1 Canada Limited
(19761, 15 N.S.R. (2d) 408 (C.A. ) . There is no question that there is an arguable point as is evidenced by the very difficult
issues raised by both counsel during the proceeding. An
application for summary judgment is inappropriate and is refused.
APPLICATION TO STRIKE DEFENCE - RULE 14.25(b) and (c) Civil Procedure Rule 14.25 reads as follows:
14.25. (1) The court may at any stage of
a proceeding order any pleading, affidavit
or statement of facts, or anything therein,
to be struck out or amended on the ground
that,
(a) it discloses no reasonable cause
of action or defence;
(b) it is false, scandalous, frivolous or vexatious ; (C it may prejudice, embarrass or delay the fair trial of the proceedings; (d) it is otherwise an abuse of
the process of the court;
and may order the proceeding to be stayed
or dismissed or judgment to be entered
accordingly.
(2) Unless the court otherwise orders,
no evidence shall be admissible by affidavit
or otherwise on an application under paragraph
(l)(a).
The Plaintiff initially sought an Order striking the
pleadings on the ground that it disclosed no reasonable cause
of action or defence but this was abandoned and the application
before me is under 14.25(1)(b) and (c). Presumably, this was
to avoid the prohibition against affidavit evidence by virtue
of Civil Procedure Rule 14.25(2).
During the course of the argument, I raised with counsel
the appropriateness of an application under Civil Procedure Rule
14.25. The solicitor for the City of Halifax had misgivings
but it seemed to me, at the time, that the issue was one of law
and one where the facts were all a matter of public record. It
seemed desirable to have the issue determined at this stage rather
than wait until the assessment of damages. I indicated to counsel
that I would consider the matters in their briefs and render
a written decision.
Since the hearing, I have reconsidered authorities
such as Seacoast Towers Services Limited v. MacLean (1987). 75
N.S.R. (2d) 70 and the authorities therein cited included Curry
v. Dargie (1984), 62 N.S.R. (2d) 416 and Fulton v. Pinegrove
Women's Institute (1984). 64 N.S.R. (2d) 98.
In Fulton, an application was made before Chief Justice Glube pursuant to Civil Procedure Rule 25.01 where a declaration that the action against him was res judicata. In the alternative,
the application included a motion to strike the Statement of
Claim under Civil Procedure Rule 14.25. Chief Justice Glube
found that the application under Rule 25.01 was appropriate even
without an agreed Statement of Facts because all of the facts
were a matter of public record. Alternatively, she struck out
the Statement of Claim under Civil Procedure Rule 14.25(1)(b)
In Seacoast Towers Service Limited v. MacLean, (supra),
Mr. Justice Matthews dealt specifically with Chief Justice Glube's
decision in Fulton and pointed out that she probably had not
had the assistance of Curry v. Darqie, (supra), and he goes on
to refer to the words of MacDonald, J.A. in Curry at page 430:
To my mind the only proper method of having
the issue of Crown immunity determined in
this case before trial was on a proper
application under Rule 25. This rule, however,
appears to be applicable only where the parties
agree to submit a question of law to the
court based uDon an aureed statement of fact
- McCallum v.' Pepsi cola Canada Ltd. et al. (1974), 15 N.S.R.(Zd) 27; 14 A.P.R. 27; The parties in this matter did not submit
a question of law based on an agreed statement
of fact. It follows that, in my opinion,
there was no valid application under Rule
25 before Mr. Justice Macintosh.
With respect to a claim under Civil Procedure Rule
14.25, MK. Justice Matthews in Seacoast had this to say at page
73:
A statement of claim may be struck-out
under rule 14.25(1) (a) where it is clear
on the face on the pleadings that no reasonable
cause of action is disclosed or, to put it
another way, that, on the face of the
pleadings, the action is obviously
unsustainable. Here, the judge in chambers
did not follow the principle that the purpose
of an application under that rule is not
to try issues, but determine if there are
issues to be tried.
Despite the fact that I believe that it is in the
interest of all parties to have this issue determined summarily,
it seems to me, from the foregoing authorities, that the only
way this issue of law can be decided is under Civil Procedure
Rule 25 and then only if it is decided on an agreed statement
of facts
The application as constituted must be dismissed but,
of course, the issue has not been resolved and it can still be
resolved in summary manner pursuant to Civil Procedure Rule 25
or at trial. In view of the fact that the main issue has yet
to be determined, the costs of the application shall be costs
in the cause.
Halifax, Nova Scotia
June 16, 1988
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.