Halifax (Regional Municipality) v. Nicholson, 2009 NSCA 109

• Judge: Hamilton, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 11, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 109;(2009), 283 N.S.R.(2d) 312 (CA)

Halifax v. Nicholson (2009), 283 N.S.R.(2d) 312 (CA);

    900 A.P.R. 312

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.047

Halifax Regional Municipality (appellant) v. David J. Nicholson (respondent)

(CA 308570; 2009 NSCA 109)

Indexed As: Halifax (Regional Municipality) v. Nicholson

Nova Scotia Court of Appeal

Hamilton, Fichaud and Beveridge, JJ.A.

October 29, 2009.

Summary:

The Halifax Regional Municipality (HRM) applied for leave to appeal and, if granted, appealed Coady, J.'s order striking HRM's limitation defence to the plaintiff's claim for damages arising out of his August 13, 2003 motorcycle accident and dismissing its application for summary judgment.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal, dismissed the plaintiff's application to strike HRM's limitation defence, and granted summary judgment to HRM. The court ordered the plaintiff to pay costs of $750 to HRM for the chambers application and $750 for the appeal, including disbursements.

Evidence - Topic 529

Presentation of evidence - Documents - Admission - Procedure - The plaintiff sued MEL for damages arising out of a motorcycle accident and, after the limitation period expired, the Halifax Regional Municipality (HRM) - A chambers judge granted the plaintiff's application under s. 3(2) of the Limitation of Actions Act to strike HRM's limitation defence - The day before the hearing the judge admitted documents sent to him by the plaintiff without an affidavit attached - Specifically, the documents were received with two letters sent by the plaintiff's counsel to the judge - In the first were copies of the following with an indication that this was "additional documentation to be relied upon by" the plaintiff: 1. excerpts from his discovery transcript, 2. portions of a site plan, 3. copies of photographs included with the site plan, 4. copies of photographs from the plaintiff's list of documents, and 5. a copy of a discharge summary from the hospital dated August 15, 2003 - In the second were copies of notes and photographs said to be from the files of Archibald, an adjuster acting for MEL, and the following statement: "As I will be making reference to these documents tomorrow, I wanted the Court to have a copy in advance. I will have the original copies with me tomorrow for viewing, as well as the original copies of the documents submitted earlier today." - The plaintiff was not called as a witness - HRM objected to the judge considering the documents because they were filed late and were not properly put into evidence by way of an affidavit - The judge referred only to the lateness argument and admitted them - The Nova Scotia Court of Appeal noted that the plaintiff filed no substantive affidavit despite having the onus to establish the basis on which his s. 3(2) application should be granted - The court held that the judge made a reversible error in admitting the hearsay documents - By admitting them in this form, he deprived HRM of its opportunity to cross-examine on them which could have impacted their value, reliability and relevance - This would have been particularly important respecting Archibald's notes and photographs, as it would have provided an opportunity to assess how useful his investigation would be in establishing the road's condition at the time of the accident - See paragraphs 10 to 13 and 24.

Limitation of Actions - Topic 9404

Bars - Disallowance of defence - General - Dismissal of application to disallow defence - The plaintiff sued MEL for damages arising out of a motorcycle accident and, after the limitation period expired, the Halifax Regional Municipality (HRM) - A chambers judge granted the plaintiff's application under s. 3(2) of the Limitation of Actions Act to strike a limitation defence by HRM - The Nova Scotia Court of Appeal held that the judge made a reversible error in striking HRM's defence where, inter alia, he gave no consideration to the fact that the onus was on the plaintiff on a s. 3(2) application, yet the plaintiff failed to file an affidavit explaining the reasons for his delay, one of the factors that s. 3(4)(a) mandated that the judge consider - This information would have been within his knowledge - The court granted HRM summary judgment where there was no issue about the plaintiff being under a disability, nor with respect to any of the facts establishing the limitation defence - There was therefore no genuine issue of material fact requiring a trial, and the plaintiff's claim was not one that had a real chance of success - See paragraphs 25 to 35.

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - [See Limitation of Actions - Topic 9404 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 8804 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8804 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - The Halifax Regional Municipality (HRM) appealed an order striking HRM's limitation defence to the plaintiff's claim for damages arising out of his August 13, 2003 motorcycle accident and dismissing its application for summary judgment - The Nova Scotia Court of Appeal stated the issues as did the chambers judge err: 1) in admitting documents sent to him by the plaintiff the day before the hearing that were not attached to an affidavit; and 2) in finding HRM's limitation defence should be struck under s. 3(2) of the Limitation of Actions Act - The court stated that the standard of review on the first issue was correctness, being a question of law - The standard of review on the second issue was that set out in Minkoff v. Poole (1991, NSCA): the court would not interfere with a discretionary order, especially an interlocutory one such as this, unless wrong principles of law had been applied or a patent injustice would result; the burden on the appellant was heavy - See paragraphs 22 to 23.

Cases Noticed:

MacCulloch v. McInnes, Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220 (C.A.), refd to. [para. 19].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 23].

Layes v. Chisholm and Stewart (1997), 159 N.S.R.(2d) 299; 468 A.P.R. 299 (C.A.), refd to. [para. 34].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 3(2), sect. 3(4) [para. 17].

Counsel:

E. Roxanne MacLaurin, for the appellant;

Nicolle A. Snow, for the respondent.

This appeal was heard at Halifax, N.S., on September 11, 2009, by Hamilton, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following decision for the court on October 29, 2009.