Hiltz v. 2420188 Nova Scotia Ltd. et al., 2011 NSCA 74

• Judge: Oland, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 23, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 74;(2011), 307 N.S.R.(2d) 89 (CA)

Hiltz v. 2420188 N.S. (2011), 307 N.S.R.(2d) 89 (CA);

    975 A.P.R. 89

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. AU.037

2420188 Nova Scotia Limited and Peter G. Alex (appellants) v. Michelle L. Hiltz and Jeffrey Earl Hiltz (respondents)

(CA 340604; 2011 NSCA 74)

Indexed As: Hiltz v. 2420188 Nova Scotia Ltd. et al.

Nova Scotia Court of Appeal

Oland, Fichaud and Beveridge, JJ.A.

August 23, 2011.

Summary:

The plaintiffs, who purchased land from the corporate defendant, alleged that the personal defendant (corporate defendant's president) represented that he would maintain the road and bring it up to municipal standards so that it could be deeded to the municipality as a public road and maintained by them. That never happened. The plaintiffs sued the corporate and personal defendants for breaching the representation. The personal defendant sought summary judgment to dismiss the action against him on the evidence. He argued that he made no representation and, alternatively, any representation would have been made on behalf of the corporate defendant. The personal defendant argued that since he was not a party to the purchase and sale agreement between the plaintiffs and the corporate defendant, the claim against him was doomed to fail as there was no genuine material issue of fact to be tried.

The Nova Scotia Supreme Court dismissed the summary judgment motion. The personal defendant appealed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, dismissed the appeal. There was a genuine material issue of fact to be tried (i.e., whether the personal defendant made a representation in his personal or corporate capacity). Accordingly, the summary judgment motion was appropriately dismissed at the first stage of the summary judgment test without requiring the plaintiffs to prove a real chance of success (second stage of test).

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The plaintiffs, who purchased land from the corporate defendant, alleged that the personal defendant (corporate defendant's president) represented that he would maintain the road and bring it up to municipal standards so that it could be deeded to the municipality as a public road and maintained by them - That never happened - The plaintiffs sued the corporate and personal defendants for breaching the representation - The personal defendant sought summary judgment to dismiss the action against him on the evidence - He argued that he made no representation in a personal or corporate capacity and, alternatively, since he was not a party to the purchase and sale agreement between the plaintiffs and the corporate defendant the claim against him was doomed to fail as there was no genuine material issue of fact to be tried - The Nova Scotia Court of Appeal affirmed the dismissal of the summary judgment motion on the ground that there was a genuine material issue of fact to be tried (i.e., whether the personal defendant made a representation in his personal or corporate capacity) - Accordingly, the summary judgment motion was appropriately dismissed at the first stage of the summary judgment test without requiring the plaintiffs to prove a real chance of success on the merits (second stage of test).

Cases Noticed:

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. 9].

Brill v. Nova Scotia (Attorney General) (2010), 294 N.S.R.(2d) 307; 933 A.P.R. 307; 2010 NSCA 69, refd to. [para. 14].

Marco Ltd. v. Newfoundland Processing Ltd. (1995), 130 Nfld. & P.E.I.R. 317; 405 A.P.R. 317 (Nfld. S.C.), refd to. [para. 15].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 20].

Nova Scotia Power Inc. v. AMCI Export Corp. (2010), 292 N.S.R.(2d) 130; 925 A.P.R. 130; 2010 NSCA 41, refd to. [para. 22].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 22].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 22].

Selig v. Cook's Oil Co. et al. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 22].

Oceanus Marine Inc. v. Saunders (1996), 153 N.S.R.(2d) 267; 450 A.P.R. 267 (C.A.), refd to. [para. 22].

Campbell v. Lienaux et al. (1998), 167 N.S.R.(2d) 196; 502 A.P.R. 196 (C.A.), refd to. [para. 22].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 42].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 44].

MacNeil v. Bethune et al. (2006), 241 N.S.R.(2d) 1; 767 A.P.R. 1; 2006 NSCA 21, refd to. [para. 52].

Turner v. Halifax (Regional Municipality) et al. (2009), 283 N.S.R.(2d) 239; 900 A.P.R. 239; 2009 NSCA 106, refd to. [para. 52].

Frothingham v. Perez et al. (2011), 304 N.S.R.(2d) 329; 960 A.P.R. 329; 2011 NSCA 59, refd to. [para. 52].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. et al. (1996), 2 O.T.C. 146; 28 O.R.(3d) 423 (Gen. Div.), affd. [1997] O.J. No. 3754 (C.A.), refd to. [para. 62].

Robinson v. Daewoo Canada Ltd. et al., [2000] O.T.C. Uned. 963, affd. [2001] O.A.C. Uned. 122 (C.A.), refd to. [para. 62].

Authors and Works Noticed:

van Kessel, Robert J., Dispositions Without Trial (2nd Ed. 2007), p. 213 [para. 46].

Counsel:

Brian K. Awad, for the appellants;

Devin M. Maxwell, for the respondents.

This appeal was heard on May 18, 2011, at Halifax, N.S., before Oland, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On August 23, 2011, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Fichaud, J.A. (Oland, J.A., concurring) - see paragraphs 1 to 35;

Beveridge, J.A., dissenting - see paragraphs 36 to 70.