MacKay v. Dauphinee, 2008 NSSC 190

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 04, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 190;(2008), 266 N.S.R.(2d) 92 (SC)

MacKay v. Dauphinee (2008), 266 N.S.R.(2d) 92 (SC);

    851 A.P.R. 92

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JN.037

Keith MacKay, assignee of Atlantic Electronics Limited (appellant) v. Harvey Dauphinee, Jardine Investments Limited and Nova Enterprises Limited (respondents)

(SH 280852(A); 2008 NSSC 190)

Indexed As: MacKay v. Dauphinee

Nova Scotia Supreme Court

LeBlanc, J.

June 18, 2008.

Summary:

As the assignee of a judgment, MacKay applied for an order granting leave to sell land owned by the debtor. At issue was the Small Claims Court's jurisdiction.

The Nova Scotia Small Claims Court, in a decision reported at (2007), 254 N.S.R.(2d) 127; 810 A.P.R. 127, held that the court lacked jurisdiction to grant leave under the Sale of Land Under Execution Act. MacKay appealed.

The Nova Scotia Supreme Court allowed the appeal. MacKay was entitled to the order sought.

Courts - Topic 6204.2

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Land - MacKay applied, as a judgment creditor, for an order under the Sale of Land Under Execution Act granting leave to sell the judgment debtor's interest in certain lands - The Small Claims Court dismissed the application on the basis that it lacked jurisdiction due to the effect of s. 10(a) of the Small Claims Act, which excluded claims for the recovery of land from the court's jurisdiction - The Nova Scotia Supreme Court allowed MacKay's appeal - An execution order issued to enforce payment of a judgment which had the result of forcing a sale of real property was not a claim for the recovery of land or of an interest or an estate in land - An execution order issued by the court was simply a recognition that the claimant was entitled to recover on its judgment - MacKay was entitled to the order sought - See paragraph 33.

Courts - Topic 6204.2

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Land - MacKay applied, as a judgment creditor, for an order under the Sale of Land Under Execution Act granting leave to sell the judgment debtor's interest in certain lands - The Small Claims Court dismissed the application on the basis that it lacked jurisdiction due to the effect of s. 10(a) of the Small Claims Act, which excluded claims for the recovery of land from the court's jurisdiction - The Nova Scotia Supreme Court allowed MacKay's appeal - Clearly, s. 10(a) restricted the Small Claims Court from involvement in the recovery of possession of real property, any application for partition of land and claims of adverse possession or rights-of-way - Further, the Small Claims Court could not preside over claims of constructive or resulting trust so far as they affected the recovery of land or claims under the Matrimonial Property Act - However, those restrictions applied to "claims", which, in this context, meant claims to enforce an obligation - To suggest that s. 10(a) prevented the Small Claims Court from adjudicating a claim that would eventually result in a judgment, represented by an amount of money, that could be recorded at the Registry of Deeds or under the Land Registration Act to create a charge on the judgment debtor's property, was a conclusion not supported by the legislation - See paragraphs 20 and 21.

Execution - Topic 3881

Sale of land of judgment debtor - Application for sale - General - [See both Courts - Topic 6204.2 ].

Practice - Topic 9767

Small claims - Jurisdiction - General - [See both Courts - Topic 6204.2 ].

Practice - Topic 9768

Small claims - Jurisdiction - Bars - [See both Courts - Topic 6204.2 ].

Cases Noticed:

Brett Motors Leasing Ltd. v. Welsford (1999), 181 N.S.R.(2d) 76; 560 A.P.R. 76 (S.C.), refd to. [para. 9].

Cox Downie v. Patterson (Bankrupt) (1992), 112 N.S.R.(2d) 148; 307 A.P.R. 148 (T.D.), refd to. [para. 22].

MacMillan v. Broughm, [2002] N.S.J. No. 108 (Small Claims Ct.), refd to. [para. 27].

Burton v. Cape Breton (Regional Municipality), [2001] N.S.J. No. 212 (Small Claims Ct.), refd to. [para. 28].

Wickwire Holm v. Wilkes (2005), 237 N.S.R.(2d) 197; 754 A.P.R. 197 (Small Claims Ct.), refd to. [para. 29].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 10(a) [para. 8].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (Looseleaf), p. 34-15 [para. 23].

Williamson, John R., Execution Against Land in New Brunswick (1981), 30 U.N.B.L.J. 131, generally [para. 24].

Ziff, Bruce H., Principles of Property Law (4th Ed. 2006), p. 428 [para. 23].

Counsel:

Keith MacKay, self-represented;

Respondents, non-appearing.

This appeal was heard at Halifax, Nova Scotia, on December 4, 2007, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 18, 2008.