Dartmouth v. Dartmouth Police, (1998) 172 N.S.R.(2d) 352 (CA)

• Judge: Glube, C.J.N.S., Chipman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 07, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 172 N.S.R.(2d) 352 (CA)

Dartmouth v. Dartmouth Police (1998), 172 N.S.R.(2d) 352 (CA);

    524 A.P.R. 352

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JA.055

The Dartmouth Police Association Local 191, of the Police Association of Nova Scotia (appellant) v. City of Dartmouth (respondent)

(C.A. 149135)

Indexed As: Dartmouth (City) v. Dartmouth Police Association

Nova Scotia Court of Appeal

Glube, C.J.N.S., Chipman and

Cromwell, JJ.A.

December 17, 1998.

Summary:

The City of Dartmouth claimed that an amendment to the collective agreement between the City and the Dartmouth Police Association (the union) did not reflect what was orally agreed to by the parties because it authorized stand by pay for investigators. The City sought rectification of the amend­ment to reflect the parties' agreement.

The Nova Scotia Supreme Court, in a decision reported at 169 N.S.R.(2d) 356; 508 A.P.R. 356, found that the amendment did not reflect what was agreed to by the parties and that there was a unilateral mistake on the part of the City. The court awarded an "eq­uitable optional remedy" whereby the union, as the non-mistaken party, was to elect between rectification and rescission. The union appealed.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial.

Deeds and Documents - Topic 5058

Rectification - When available - Mistake - Unilateral - The City of Dartmouth claimed that an amendment to the collec­tive agreement between the City and the Dartmouth Police Association (the union) did not reflect what was orally agreed to by the parties because it authorized stand by pay for investigators - The City sought rectification of the amendment - The trial judge, finding that the amendment did not reflect what was agreed to by the parties and that there was a unilateral mistake by the City, awarded an "equitable optional remedy" whereby the union, as the non-mistaken party, was to elect between rec­tification and rescission - The union appealed - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial - Proof of an agreement between the parties which the instrument failed to embody was fundamental to a claim for rectification - The trial judge's conflicting findings on that fundamental issue was an error requiring appellate intervention.

Deeds and Documents - Topic 5101

Rectification - Conditions precedent - [See Deeds and Documents - Topic 5058 ].

Deeds and Documents - Topic 5176

Rectification - Proof and evidence - Gen­eral - [See Deeds and Documents - Topic 5058 ].

Equity - Topic 1106

Equitable relief - Contracts - Rescission - When available - [See Deeds and Docu­ments - Topic 5058 ].

Equity - Topic 1108

Equitable relief - Contracts - Rectification - [See Deeds and Documents - Topic 5058 ].

Labour Law - Topic 6141

Industrial relations - Collective agreement -Variation of - By parties - [See Deeds and Documents - Topic 5058 ].

Mistake - Topic 4005

Relief - Circumstances when granted - [See Deeds and Documents - Topic 5058 ].

Mistake - Topic 4041

Relief - Conditions precedent - General - [See Deeds and Documents - Topic 5058 ].

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; [1994] 2 W.W.R. 609; 87 B.C.L.R.(2d) 1, refd to. [para. 6].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 6].

Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 8].

Bank of Montreal v. Vancouver Pro­fessional Soccer Ltd. (1987), 15 B.C.L.R.(2d) 34 (C.A.), refd to. [para. 9].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract in Canada (3rd Ed. 1994), p. 822 [para. 8].

Spry, I.F.C., The Principles of Equitable Remedies (5th Ed. 1997), p. 607 [para. 8].

Counsel:

Ronald A. Pink, Q.C., and David J. Roberts, for the appellant;

W. Augustus Richardson, for the respon­dent.

This appeal was heard on December 7, 1998, before Glube, C.J.N.S., Chipman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Cromwell, J.A., on December 17, 1998.