Canadian Pacific Ltd. et al. v. Lowe, (1999) 180 N.S.R.(2d) 330 (CA)

• Judge: Freeman, Flinn and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 05, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 180 N.S.R.(2d) 330 (CA);1999 NSCA 115

Cdn. Pacific Ltd. v. Lowe (1999), 180 N.S.R.(2d) 330 (CA);

 557 A.P.R. 330

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. OC.029

Donald J. Lowe and Michael A. Lowe (appellants) v. Canadian Pacific Limited, a body corporate and Dominion Atlantic Railway, a body corporate (respondents)

(C.A.C. No. 149217; 1999 NSCA 115)

Indexed As: Canadian Pacific Ltd. et al. v. Lowe

Nova Scotia Court of Appeal

Freeman, Flinn and Cromwell, JJ.A.

October 5, 1999.

Summary:

In 1854, the Province of Nova Scotia passed An Act to Authorize the Construction of Railways which provided for the expro­priation of the required land. In 1867, the Windsor and Annapolis Railway was incor­porated. In 1870, the Western Counties Railway Co. was incorporated to build and operate a railroad from Yarmouth to An­napolis. By 1894, both the Western Counties Railway and the Windsor and Annapolis Railway had been combined to form the Dominion Atlantic Railway. In 1911, the Dominion Atlantic Railway leased its rail­way to the Canadian Pacific Railway (CPR) for 999 years. In 1989, the National Trans­portation Agency of Canada ordered the CPR to abandon the section between Kent­ville and Yarmouth. In 1991, Lowe lowered the bed on part of the abandoned right of way and built an airplane landing strip. The CPR ordered Lowe to stop all work on the right of way and leave. Lowe submitted that the abandoned right of way belonged to the public. The CPR sued for a declaration, an injunction and damages. Lowe counter­claimed for trespass on the ground that two of the CPR's agents intentionally entered onto the Lowe's land.

The Nova Scotia Supreme Court, in a decision reported 172 N.S.R.(2d) 89; 524 A.P.R. 89, granted an injunction and awarded the CPR nominal damages of $100. Lowe's counterclaim was also allowed with nominal damages of $100 being awarded against the CPR. Lowe appealed.

The Nova Scotia Court of Appeal, in a decision reported 177 N.S.R.(2d) 393; 542 A.P.R. 393, dismissed the appeal. Lowe sought leave to appeal to the Supreme Court of Canada.

The Nova Scotia Court of Appeal dis­missed the application.

Practice - Topic 9090

Appeals - Supreme Court of Canada - Leave to appeal by a provincial court of appeal - Lowe sought leave to appeal a judgment of the Nova Scotia Court of Appeal to the Supreme Court of Canada under s. 37 of the Supreme Court of Canada Act - The Nova Scotia Court of Appeal dismissed the application without prejudice to Lowe's right to seek leave from the Supreme Court of Canada - The court stated that its discretion to grant "leave to appeal to the Supreme Court of Canada should be exercised in only rare and exceptional circumstances" - There was nothing rare or exceptional in this case which would justify the Court of Appeal requiring the Supreme Court of Canada hear the case.

Cases Noticed:

Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 5].

Campbell v. East-West Packers (1969) Ltd. (No. 2) (1982), 20 Man.R.(2d) 146; 143 D.L.R.(3d) 136 (C.A.), refd to. [para. 7].

Winfield Developments Ltd. v. Winnipeg (City) (1989), 60 Man.R.(2d) 285 (C.A.), refd to. [para. 7].

Pearlman v. Winnipeg (City) et al. (1992), 81 Man.R.(2d) 274; 30 W.A.C. 274 (C.A.), refd to. [para. 7].

Chartier v. Chartier (1997), 123 Man.R.(2d) 127; 159 W.A.C. 127 (C.A.), refd to. [para. 7].

Pittman v. Manufacturers Life Insurance Co. (1991), 91 Nfld. & P.E.I.R. 17; 286 A.P.R. 17; 80 D.L.R.(4th) 634 (Nfld. C.A.), refd to. [para. 7].

Marlay Construction Ltd. v. Mount Pearl (City) (1997), 147 Nfld. & P.E.I.R. 249; 459 A.P.R. 249 (Nfld. C.A.), refd to. [para. 7].

Pre-Bilt Structures Ltd. v. Thompson (1986), 57 Nfld. & P.E.I.R. 177; 170 A.P.R. 177 (P.E.I.C.A.), refd to. [para. 7].

Armco Canada Ltd. v. P.C.L. Construction Ltd. (1986), 33 D.L.R.(4th) 621 (Sask. C.A.), refd to. [para. 7].

Cohnstaedt v. University of Regina, [1986] S.J. No. 754 (C.A.), refd to. [para. 7].

Ashmead v. Medical Services Commission (B.C.), [1992] 6 W.W.R. 763; 15 B.C.A.C. 133; 27 W.A.C. 133 (C.A.), refd to. [para. 7].

R. v. Williams (A.) et al. (1994), 52 B.C.A.C. 296; 86 W.A.C. 296 (C.A.), refd to. [para. 7].

British Columbia (Attorney General) v. Mount Currie Indian Band, [1992] B.C.J. No. 2090 (C.A.), refd to. [para. 7].

Redpath Industries Ltd. v. Ship Cisco (1993) 163 N.R. 161 (F.C.A.), refd to. [para. 7].

Counsel:

W. Bruce Gillis, Q.C., for the appellants;

Elizabeth Jollimore, for the respondents.

This application was heard before Free­man, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. Cromwell, J.A., delivered the following judgment orally on October 5, 1999.