Dennis v. Langille, (2013) 326 N.S.R.(2d) 332 (SC)

JudgeMurphy, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateOctober 03, 2012
JurisdictionNova Scotia
Citations(2013), 326 N.S.R.(2d) 332 (SC);2013 NSSC 42

Dennis v. Langille (2013), 326 N.S.R.(2d) 332 (SC);

    1033 A.P.R. 332

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.005

Clarence Dennis (appellant) v. Rickey E. Langille (respondent)

(Tru. No. 389821; 2013 NSSC 42)

Indexed As: Dennis v. Langille

Nova Scotia Supreme Court

Murphy, J.

February 4, 2013.

Summary:

The defendant sold the plaintiff a cottage on Cobequid Bay. The defendant knew that the property was subject to yearly shoreline erosion, but did not disclose this to the plaintiff. When the plaintiff learned of the erosion problem, he spent almost $10,000 for an armour rock barrier. The plaintiff sued to recover the cost of the barrier, arguing that the defendant misrepresented the danger of erosion in the property condition disclosure statement. The Small Claims Court allowed the claim on the ground that the shoreline erosion was a major and substantial latent defect that was not apparent on a reasonable inspection of the property. The court held that the defendant had a duty to disclose the erosion problem. The defendant appealed. The issues were should the notice of appeal be struck where it was not served until six days after the 30 day limitation period expired; did the court err in finding liability based on an issue not pleaded by the plaintiff (latent defect); and did the court err in finding that soil erosion constituted a latent defect.

The Nova Scotia Supreme Court extended the time to file and serve the notice of appeal and dismissed the appeal. The Small Claims Court adjudicator did not err in permitting submissions on whether shoreline erosion was a latent defect where the issue was not pleaded. However, the adjudicator erred in finding that shoreline erosion was a latent defect.

Courts - Topic 6204

Provincial courts - Nova Scotia - Small Claims Court - Appeals - [See Practice - Topic 9002 ].

Courts - Topic 6209

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Adjudicator - The Nova Scotia Supreme Court held that "an adjudicator is entitled to grant a remedy if the evidence makes out a cause of action, even if that cause of action was not specifically pleaded. If necessary, he or she can adjourn the proceedings to cure any prejudice to the other party that results from surprise" - This reflected the objectives set out in s. 2 of the Small Claims Court Act, being the adjudication of claims within its monetary jurisdiction "informally and inexpensively but in accordance with established principles of natural justice" - See paragraphs 16 to 18.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Small Claims Court ruled in the plaintiff's favour - The defendant had 30 days to appeal - The defendant filed his notice of appeal within the limitation period, but failed to serve the notice of appeal on the plaintiff until six days after the limitation period expired - The plaintiff sought to set aside the notice of appeal - The Nova Scotia Supreme Court held that under s. 22(12) of the Small Claims Court Forms and Procedures Regulation, the court had a discretion to dismiss the notice of appeal or extend the time for filing and serving it - The defendant had a bona fide intention to appeal - Although the defendant's counsel had no reasonable excuse for failing to serve the notice of appeal within the 30 day period, that mistake was attributable to counsel, not the defendant - The appeal had merit and the minor delay would not prejudice the plaintiff - The court held that the interests of justice required that an extension of time to file and serve the notice of appeal be granted - See paragraphs 5 to 15.

Practice - Topic 9761

Small claims - Appeals - Limitation period - [See Practice - Topic 9002 ].

Sale of Land - Topic 6217

Seller's duties - General - Latent defects - The defendant sold the plaintiff a cottage on Cobequid Bay - The defendant knew that the property was subject to yearly shoreline erosion, but did not disclose this to the plaintiff - When the plaintiff learned of the erosion, he spent almost $10,000 for an armour rock barrier - The plaintiff sued to recover the cost of the barrier, arguing that the defendant misrepresented the danger of erosion in the property condition disclosure statement - The Small Claims Court allowed the claim on the ground that the shoreline erosion was a major and substantial latent defect that was not apparent on a reasonable inspection of the property - The defendant had a duty to disclose the erosion problem - The Nova Scotia Supreme Court allowed the defendant's appeal - The Small Claims Court erred in finding that shoreline erosion was a latent defect - The court stated that "the reality of erosion is necessarily implied by the property's adjacency to the [Bay of Fundy], and that is visible to the eye" - The plaintiff had a duty to make reasonable inquiries as to soil erosion - At the very least, he should have made such inquiries to the defendant, and it would not be unreasonable to expect him to make inquiries to neighbours - The court stated that "the fact that the extent of the problem is undisclosed by visual inspection does not make it latent, especially in the absence of inquiry" - See paragraphs 19 to 26.

Sale of Land - Topic 8631

Remedies of purchaser - For quality defects - Latent defects - [See Sale of Land - Topic 6217 ].

Cases Noticed:

Clark v. Canzio (2003), 220 N.S.R.(2d) 256; 694 A.P.R. 256; 2003 NSSC 252, refd to. [para. 7].

G.S.H. v. Children's Aid Society of Cape Breton (2003), 217 N.S.R.(2d) 114; 683 A.P.R. 114; 2003 NSCA 84, refd to. [para. 7].

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 7].

Popular Shoe Store Ltd. v. Simoni (1998), 163 Nfld. & P.E.I.R. 100; 503 A.P.R. 100; 24 C.P.C.(4th) 10; 1998 CanLII 18099 (Nfld. C.A.), refd to. [para. 17].

MacIntyre v. Nichols (2004), 221 N.S.R.(2d) 137; 697 A.P.R. 137; 2004 NSSC 36, refd to. [para. 17].

Oasis Motor Home Rentals Ltd. v. Thomas et al., [2001] N.S.R.(2d) Uned. 42; 2001 NSSC 45, refd to. [para. 17].

TG Industries Ltd. v. Ace Towing Ltd. (2008), 271 N.S.R.(2d) 72; 867 A.P.R. 72; 2008 NSSC 65, refd to. [para. 17].

Brett Motors Leasing v. Welsford Ltd. (1999), 181 N.S.R.(2d) 76; 560 A.P.R. 76 (S.C.), refd to. [para. 19].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd. to. [para. 19].

Rushton v. Economical Mutual (2008), 267 N.S.R.(2d) 193; 853 A.P.R. 193; 2008 NSSC 237, refd to. [para. 19].

Cardwell v. Perthen (2007), 243 B.C.A.C. 135; 401 W.A.C. 135; 2007 BCCA 313, refd to. [para. 20].

Gesner v. Ernst et al. (2007), 254 N.S.R.(2d) 284; 810 A.P.R. 284; 2007 NSSC 146, refd to. [para. 20].

Willman v. Durling (2006), 249 N.S.R.(2d) 48; 792 A.P.R. 48 (S.C.), refd to. [para. 20].

Haviland v. Pickering (2011), 382 Sask.R. 290; 2011 SKPC 144, refd to. [para. 20].

Thompson et al. v. Schofield et al. (2005), 230 N.S.R.(2d) 217; 729 A.P.R. 217; 2005 NSSC 38, refd to. [para. 21].

Jenkins et al. v. Foley (2002), 215 Nfld. & P.E.I.R. 257; 644 A.P.R. 257; 2002 NFCA 46, refd to. [para. 21].

Statutes Noticed:

Small Claims Court Act Regulations (N.S.), Small Claims Court Forms and Procedures Regulations, Reg. 17/93, sect. 22(12) [para. 6].

Small Claims Court Forms and Procedures Regulation - see Small Claims Court Act Regulations (N.S.).

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (1988) (2012 looseleaf), §236 [para. 21].

Halbury's Laws of Canada - Misrepresentation and Fraud (2008), HMP-25 [para. 21].

Halsbury's Laws of England (4th Ed. 1980), vol. 42, para. 45 [para. 20].

Counsel:

Peter Lederman, Q.C., for the appellant;

Rickey E. Langille, on his own behalf.

This appeal was heard on October 3, 2012, at Truro, N.S., before Murphy, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 4, 2013.

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6 practice notes
  • Apogee Properties Inc. v. Livingston, 2018 NSSC 143
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • June 14, 2018
    ...decision has been considered in various decisions. Questions of law are subject to a standard of correctness: Dennis v. Langille, 2013 NSSC 42, [2013] N.S.J. No. 62, at para. 19. More broadly, in MacDonald v. Barbour, 2012 NSSC 102, [2012] N.S.J. No. 142, Robertson J. said: 9 The standard o......
  • MacIntyre v. Delaney,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • April 7, 2022
    ...Ltd. v. Welsford,[1999] N.S.J. No. 466 (N.S.S.C.); Young v. Clahane, 2008 NSSM 16; William v. Durling, 2006 NSSM 221; Dennis v. Langille, 2013 NSSC 42; Queen v. Cognos, [1993] 1 SCR 87, 99 DLR (4th) 626; Lawlor v. Currie, 2007 NSSM 60; Doherty v. Rethman, 2015 NSSM 13; Zafris v. Surette, 20......
  • Polegato and Stanley v. Martell and Marchand,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • February 14, 2020
    ...her Application.   Caselaw: MacDonald v. Ford, 2015 ONSC 4783; Scotia Mortgage Corp. v. Chalmers, 2011 NSSC 339; Dennis v. Langille, 2013 NSSC 42; Min. of Community Services v. C.K.Z. and C.L.P., 2016 NSCA 61 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. ......
  • Goulden v. Fownes,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • August 31, 2021
    ..."the just, speedy, and inexpensive determination of every proceeding". [34]      In Dennis v Langille, 2013 NSSC 42, reviewing subsection 22(12) of the Regulations, the Court indicated that non-compliance with the Regulations is not necessarily fatal to an......
  • Request a trial to view additional results
6 cases
  • Apogee Properties Inc. v. Livingston, 2018 NSSC 143
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • June 14, 2018
    ...decision has been considered in various decisions. Questions of law are subject to a standard of correctness: Dennis v. Langille, 2013 NSSC 42, [2013] N.S.J. No. 62, at para. 19. More broadly, in MacDonald v. Barbour, 2012 NSSC 102, [2012] N.S.J. No. 142, Robertson J. said: 9 The standard o......
  • MacIntyre v. Delaney,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • April 7, 2022
    ...Ltd. v. Welsford,[1999] N.S.J. No. 466 (N.S.S.C.); Young v. Clahane, 2008 NSSM 16; William v. Durling, 2006 NSSM 221; Dennis v. Langille, 2013 NSSC 42; Queen v. Cognos, [1993] 1 SCR 87, 99 DLR (4th) 626; Lawlor v. Currie, 2007 NSSM 60; Doherty v. Rethman, 2015 NSSM 13; Zafris v. Surette, 20......
  • Polegato and Stanley v. Martell and Marchand,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • February 14, 2020
    ...her Application.   Caselaw: MacDonald v. Ford, 2015 ONSC 4783; Scotia Mortgage Corp. v. Chalmers, 2011 NSSC 339; Dennis v. Langille, 2013 NSSC 42; Min. of Community Services v. C.K.Z. and C.L.P., 2016 NSCA 61 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. ......
  • Goulden v. Fownes,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • August 31, 2021
    ..."the just, speedy, and inexpensive determination of every proceeding". [34]      In Dennis v Langille, 2013 NSSC 42, reviewing subsection 22(12) of the Regulations, the Court indicated that non-compliance with the Regulations is not necessarily fatal to an......
  • Request a trial to view additional results

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