Keirstead v. Piggott et al., (1999) 177 N.S.R.(2d) 1 (SC)

• Judge: Gruchy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 06, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 177 N.S.R.(2d) 1 (SC)

Keirstead v. Piggott (1999), 177 N.S.R.(2d) 1 (SC);

    538 A.P.R. 1

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. MY.033

Russell Clive Keirstead (plaintiff) v. Stephen D. Piggott (defendant) and Alexander Joseph Innocente and Gwendoline Ann Innocente (third party) and Christopher Flemming (fourth party)

(S.H. No. 136091)

Indexed As: Keirstead v. Piggott et al.

Nova Scotia Supreme Court

Gruchy, J.

May 6, 1999.

Summary:

The plaintiff, a retired schoolteacher from Prince Edward Island, purchased a 50 acre parcel of land in Nova Scotia from the vendors. Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement specifying that his solicitor had to be sat­isfied that there was legal registered access to the property. After closing, the plaintiff discovered that there was in fact no legal registered access to the property. He com­menced an action against his solicitor for negligence and subsequently, the vendors. The solicitor added the vendors as third parties to the action against him. A fourth party also became involved (the owner of the abutting property), however, all claims against him were dismissed prior to trial.

The Nova Scotia Supreme Court allowed the plaintiff's claim. The court assessed damages accordingly.

Barristers and Solicitors - Topic 2593

Negligence - Particular negligent acts - Title search - The plaintiff purchased a 50 acre parcel of land from the vendors - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement spec­ifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that the property in fact had no legal registered access - He commenced an action against, among others, his solici­tor - The Nova Scotia Supreme Court held that the solicitor was negligent in failing to ensure that a legal right-of-way existed - The court further concluded that whether the solicitor's liability arose in contract or tort was irrelevant as the result and corre­sponding damages were the same - See paragraphs 1 to 65.

Barristers and Solicitors - Topic 2597

Negligence - Particular negligent acts - Re closing of sale of land - [See Barris­ters and Solicitors - Topic 2593 ].

Barristers and Solicitors - Topic 2677

Negligence - Damages - Re purchase of land - The plaintiff purchased a 50 acre parcel of land from the vendors - Because the property did not abut on a public road, the plaintiff inserted a clause in the pur­chase and sale agreement spec­ifying that his solicitor was to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property and all his plans had to be put on hold - He sued his solicitor and the vendors for damages - The Nova Scotia Supreme Court allowed the action and awarded the plaintiff $60,000 general damages - See paragraphs 1 to 83 and 98 to 111 - The court further calculated special damages accordingly.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepre­sentation - The Nova Scotia Supreme Court referred to five general requirements for a successful action for negligent mis­representation (Hedley Byrne doctrine) - The court then applied this doctrine to representations made by vendors prior to the sale of property to the plaintiff - See paragraphs 71 to 83.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepre­sentation - [See Torts - Topic 8988 ].

Interest - Topic 5117

Interest as damages (prejudgment interest) - Breach of contract - Sale of land - [See fifth Sale of Land - Topic 8774 ].

Sale of Land - Topic 6210

Completion - Seller's duties - General - Respecting quiet enjoyment - [See Sale of Land - Topic 8757 ].

Sale of Land - Topic 8404

Remedies of purchaser - Requirement of breach of warranty - [See Sale of Land - Topic 8757 ].

Sale of Land - Topic 8750

Remedies of purchaser - Damages - Gen­eral principles - The Nova Scotia Supreme Court noted that compensation for loss of property may be usefully regarded as containing two elements: a substitute for loss of the value of the property and a substitute for the loss of the opportunities to use it - See paragraph 96.

Sale of Land - Topic 8752

Remedies of purchaser - Damages - Gen­eral damages - The plaintiff purchased a 50 acre parcel of land from the vendors - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement spec­ifying that his solicitor was to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property and all his plans had to be put on hold - He sued his solicitor and the vendors for damages - The Nova Scotia Supreme Court allowed the action and awarded the plaintiff $60,000 general damages - See paragraphs 1 to 83 and 98 to 111.

Sale of Land - Topic 8757

Remedies of purchaser - Damages - Breach of warranty or false representation - The plaintiff purchased a 50 acre parcel of land from the vendors - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement specifying that his solicitor was to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that the property in fact had no legal registered access - He commenced an action against, among others, the vendors - The Nova Scotia Supreme Court allowed the plaint­iff's claim - The vendors, by way of war­ranty deed, warranted that they had a right-of-way to the property - This was not true and accordingly, the covenant of the deed was breached and the vendors were liable for the resulting damages - See paragraphs 68 to 70.

Sale of Land - Topic 8758

Remedies of purchaser - Damages - Neg­ligent misrepresentation - [See Torts - Topic 8988 ].

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - The plaintiff purchased a 50 acre parcel of land from the vendors - He made a $50,000 down payment and took a mortgage from the vendors for the rest - The plaintiff intended to build a house on part of the property and subdivide the rest - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement spec­ifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal access to the property - He sued his solic­itor and the vendors for damages - In allowing the action, the Nova Scotia Supreme Court held that the plaintiff was entitled to the loss he incurred on the resale of lumber he had to sell when he realized he could not build his house because of the problem - See paragraph 94.

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - The plaintiff purchased a 50 acre parcel of land from the vendors - He made a $50,000 down payment and took a mortgage from the vendors for the rest - The plaintiff intended to build a house on part of the property and subdivide the rest - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement spec­ifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property - He sued his solicitor and the vendors for damages - In allowing the action, the Nova Scotia Supreme Court held that the plaintiff was entitled the sum he paid for building per­mits which had expired - See paragraph 94.

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - The plaintiff purchased a 50 acre parcel of land from the vendors - He made a $50,000 down payment and took a mortgage from the vendors for the rest - The plaintiff intended to build a house on part of the property and subdivide the rest - Because the property did not abut on a public road, the plaintiff inserted a clause in the purchase and sale agreement spec­ifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property - He sued his solicitor and the vendors for damages -In allowing the action, the Nova Scotia Supreme Court held that the plaintiff was entitled to the return of the interest portion of the mortgage payments he made to the vendors - This amount equalled $56,000 - See paragraph 87.

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - The plaintiff purchased a 50 acre parcel of land from the vendors - He intended to build a house on part of the property and subdivide the rest - Because the property did not abut on a public road, the plaintiff inserted a clause in the pur­chase and sale agreement specifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property - He sued his solic­itor and the vendors for damages - In allowing the action, the Nova Scotia Supreme Court held that the plaintiff was entitled to a return of the $7,000 property taxes he paid since purchasing the property - See paragraph 88.

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - The plaintiff purchased a 50 acre parcel of land from the vendors - He intended to build a house on part of the property and subdivide the rest - Because the property did not abut on a public road, the plaintiff inserted a clause in the pur­chase and sale agreement specifying that his solicitor had to be satisfied that there was legal registered access to the property - After closing, the plaintiff discovered that there was in fact no legal registered access to the property - He sued his solic­itor and the vendors for damages - In allowing the action, the Nova Scotia Supreme Court held that the plaintiff was entitled to interest of 8% on the $50,000 down payment he made to the vendors in 1992 - This amount equalled $33,000 - See paragraph 86.

Torts - Topic 8988

Duty of care - Particular relationships - Negligent words - What constitutes negli­gent advice - The plaintiff purchased a 50 acre parcel of land from the vendors - Because the property did not abut on a public road, the plaintiff questioned whether there was a legal right-of-way over the property - The vendors assured him that there was - Nonetheless, the plaintiff inserted a clause in the purchase and sale agreement specifying that his solicitor had to be satisfied that a legal registered access to the property existed - After closing, the plaintiff discovered that the property in fact had no legal registered access - He commenced an action against, among others, the vendors - The Nova Scotia Supreme Court allowed the claim where the vendors knew or ought to have known that it was questionable whether the right-of-way actually existed which they failed to disclose - This failure constituted actionable misrepresentation - See para­graphs 71 to 83.

Cases Noticed:

Banks v. Reid (1975), 53 D.L.R.(3d) 27 (Ont. H.C.), refd to. [para. 63].

Central Trust Co. v. Ra­fuse and Cor­don, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 31 D.L.R.(4th) 481, refd to. [para. 64].

Hedley Byrne & Co. v. Heller & Part­ners Ltd., [1963] 2 All E.R. 575; [1963] 3 W.L.R. 101; [1964] A.C. 465 (H.L.), refd to. [para. 72].

Barrett v. Reynolds et al. (1997), 164 N.S.R.(2d) 256; 491 A.P.R. 256 (C.A.), refd to. [para. 72].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 72].

MacInnis v. MacMillan (1989), 94 N.S.R.(2d) 271; 247 A.P.R. 271 (T.D.), refd to. [para. 80].

Magical Waters Fountains Ltd. v. Sarnia (1990), 74 O.R.(2d) 682 (Gen. Div.), refd to. [para. 81].

Caldwell and Caldwell v. Fitzgerald, Kel­leher and Morrison (1977), 26 N.S.R. 140; 40 A.P.R. 140 (T.D.), refd to. [para. 107].

Nowlan v. Brunswick Construction Ltd. (1972), 5 N.B.R.(2d) 529; 34 D.L.R.(3d) 422 (C.A.), affd. (1974), 2 N.R. 164; 8 N.B.R.(2d) 76; 49 D.L.R.(3d) 92 (S.C.C.), refd to. [para. 112].

Komarniski v. Marien et al. (1979), 100 D.L.R.(3d) 81 (Sask. Q.B.), refd to. [para. 112].

Authors and Works Noticed:

Fordham, A.G.H., Easements, Licenses and Rights-of-Way (1987), generally [paras. 47, 48].

MacIntosh, C.W., Nova Scotia Real Property Practice Manual, generally [para. 49].

McGregor on Damages (16th Ed. 1990), para. 94 [para. 106].

Waddams, Stephen M., The Law of Dam­ages (Looseleaf Ed.), p. 1-1 [para. 96].

Counsel:

John E. MacDonnell, for the plaintiff;

J.D. MacIsaac and Mary Ellen Greenough (articled clerk), for the defendant.

This action was heard on March 29, 30, 31, April 1 and 27, 1999, before Gruchy, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 6, 1999.