Gillis et al. v. New Glasgow (Town) et al.

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Roscoe, Oland and Fichaud, JJ.A.
• Citation: 2009 NSCA 66,(2009), 280 N.S.R.(2d) 138 (CA)
• Date: 14 May 2009

Gillis v. New Glasgow (2009), 280 N.S.R.(2d) 138 (CA);

    891 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JN.039

Allan M. Gillis and AMG Development Inc. (appellants) v. Town of New Glasgow (respondent)

(CA 298313; 2009 NSCA 66)

Indexed As: Gillis et al. v. New Glasgow (Town) et al.

Nova Scotia Court of Appeal

Roscoe, Oland and Fichaud, JJ.A.

June 17, 2009.

Summary:

In 2003, the Town of New Glasgow requested proposals for the development of property. The plaintiffs' proposal for a condominium development on the site was successful. The parties had extensive dealings, negotiations and exchanges of documentation until July-August 2005, when the Town executed and delivered to the plaintiffs a deed for the property and an amended development agreement was signed and registered. Construction did not commence within the period contemplated by the development agreement and the plaintiffs conveyed the property to a third party. The plaintiffs sued the Town for breach of contract, negligence, wilful misrepresentation and damages to professional reputation. The plaintiffs claimed that they suffered loss as a result of the Town's conduct throughout the parties' negotiations and dealings. The Town denied responsibility and counterclaimed for breach of contract and conversion, seeking, payment for the amount of the deposit in connection with the purchase of the property ($6,500) and losses that the Town incurred when the plaintiffs did not continue the development. The Town applied for summary judgment and judgment on the counterclaim.

The Nova Scotia Supreme Court, in a decision reported at 269 N.S.R.(2d) 1; 860 A.P.R. 1, granted the Town summary judgment and judgment for $6,500, but dismissed the balance of the application for summary judgment on the counterclaim. The plaintiffs appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Contracts - Topic 2534

Variation or alteration - By parties - Subsequent negotiations - In 2003, the Town of New Glasgow requested proposals for the development of property - The plaintiffs submitted the successful proposal - The parties had extensive dealings, negotiations and exchanges of documentation until July-August 2005, when the Town executed and delivered to the plaintiffs a deed for the property and an amended development agreement was signed and registered - Construction did not commence within the period contemplated by the development agreement and the plaintiffs conveyed the property to a third party - The plaintiffs sued the Town for, inter alia, breach of contract and negligence - A chambers judge granted the Town summary judgment and dismissed the action, holding that, even if there had been an agreement for the conveyance of the property prior to July 2005, it was varied and superseded by the 2005 development agreement and the purchase and sale agreement executed at that time - The plaintiffs appealed, asserting that the new contract was not valid because, inter alia, there was no consideration and it was entered into in circumstances of economic duress - The Nova Scotia Court of Appeal dismissed the appeal - The plaintiffs requested and received additional time to commence construction - That constituted consideration - Economic duress was not pleaded or raised at the summary judgment application, and there was no evidence that the plaintiffs advised the Town that they were entering into the amended agreement because of economic duress - See paragraphs 10 to 12.

Contracts - Topic 2861

Consideration - What constitutes consideration - General - [See Contracts - Topic 2534 ].

Estoppel - Topic 1163

Estoppel in pais (by conduct) - Representation - By conduct - Practice or course of conduct - In 2003, the Town of New Glasgow requested proposals for the development of property - The plaintiffs submitted the successful proposal - The parties had extensive dealings, negotiations and exchanges of documentation until July-August 2005, when the Town executed and delivered to the plaintiffs a deed for the property and an amended development agreement was signed and registered - Construction did not commence within the period contemplated by the development agreement and the plaintiffs conveyed the property to a third party - The plaintiffs sued the Town for, inter alia, breach of contract and negligence - The plaintiffs asserted that in 2003, the Town accepted their development proposal and their offer to purchase and represented that the transaction would close and the real property would be conveyed - The plaintiff asserted that the defendant failed to record the original development agreement, delayed closing the transaction to convey the property and improperly used other negotiating tactics - A chambers judge granted the Town summary judgment and dismissed the action - The judge held that, inter alia, by proceeding to the end of negotiations, the plaintiffs misled the Town into believing that the parties were ad idem - An estoppel arose, not from the specific discussions in the course of negotiations, but from the plaintiffs' act of continuing to negotiate - The estoppel principle also applied to the negligence aspects of the claim - The Nova Scotia Court of Appeal dismissed an appeal - Estoppel required findings of fact that there was both a representation and detrimental reliance - There was no varying evidence on those material facts - The evidence of the events was documentary - The documents were not disputed - The chambers judge drew inferences from the documents and was well poised to do so - The inferences were supported by the documents and should not be disturbed on appeal - See paragraphs 15 to 20.

Estoppel - Topic 1171

Estoppel in pais (by conduct) - Representation - By conduct - Variation of contract - [See Estoppel - Topic 1163 ].

Land Regulation - Topic 3007

Land use control - Development agreements - General - Validity of - In 2003, the Town of New Glasgow requested proposals for the development of property - The plaintiffs submitted the successful proposal - The parties had extensive dealings, negotiations and exchanges of documentation until July-August 2005, when the Town executed and delivered to the plaintiffs a deed for the property and an amended development agreement was signed and registered - Construction did not commence within the period contemplated by the development agreement and the plaintiffs conveyed the property to a third party - The plaintiffs sued the Town for, inter alia, breach of contract and negligence - A chambers judge granted the Town summary judgment and dismissed the action - The plaintiffs appealed, asserting that since the amendment to the development agreement was substantial, the Town should have complied with s. 230 of the Municipal Government Act which required, inter alia, adoption by the Town Council, public hearing and newspaper advertising - The plaintiffs asserted that the noncompliance rendered the amended agreement void or voidable - The Nova Scotia Court of Appeal rejected the assertion where there was no authority cited by the plaintiffs that suggested that changing the date for commencement of construction constituted a substantial amendment to a development agreement, or that a breach of s. 230 affected the validity of a contract between the parties - If the plaintiffs' argument that non-registration of the agreement rendered it void were accepted, then the same argument would apply to the original agreement, in which case the plaintiffs would have no cause of action for breach of an implied term to convey the property in accordance with the original agreement - See paragraph 13.

Land Regulation - Topic 3030

Land use control - Development agreements - Contents - Amendments - [See Land Regulation - Topic 3007 ].

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences and inferences from truthful evidence - [See Estoppel - Topic 1163 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - A chambers judge allowed the defendants' application for summary judgment - The plaintiffs appealed - The Nova Scotia Court of Appeal stated that "Since the order made by the chambers judge terminated the appellants' action, the standard of review is not that usually applied to discretionary orders of an interlocutory nature but rather, whether there was an error of law resulting in an injustice." - See paragraph 7.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Contracts - Topic 2534 ].

Sale of Land - Topic 2041

The contract - Variation - General - [See Contracts - Topic 2534 ].

Cases Noticed:

J.A.C. et al. v. Atlantic Provinces Special Education Authority (2008), 275 N.S.R.(2d) 36; 877 A.P.R. 36; 2008 NSCA 94, refd to. [para. 7].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 18].

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 18].

Teleflex Inc. v. IMP Group Ltd. (1996), 149 N.S.R.(2d) 355; 432 A.P.R. 355 (C.A.), refd to. [para. 18].

Counsel:

Matthew J.M. Gibbon and Lance Scaravelli, for the appellant;

David A. Graves, Q.C., and Ian Dunbar, for the respondent.

This appeal was heard on May 14, 2009, in Halifax, Nova Scotia, by Roscoe, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Roscoe, J.A., delivered the following judgment for the court on June 17, 2009.