MacKay v. Dauphinee, 2007 NSSM 11

• Jurisdiction: Nova Scotia
• Judge: O'Hara
• Neutral Citation: 2007 NSSM 11
• Citation: 2007 NSSM 11,(2007), 254 N.S.R.(2d) 127 (SmCl),254 NSR(2d) 127,(2007), 254 NSR(2d) 127 (SmCl),254 N.S.R.(2d) 127
• Date: 27 March 2007
• Court: Small Claims Court of Nova Scotia (Canada)

MacKay v. Dauphinee (2007), 254 N.S.R.(2d) 127 (SmCl);

    810 A.P.R. 127

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AP.048

Keith MacKay, Assignee of Atlantic Electronics Limited (claimant) v. Harvey Dauphinee (defendant)

(Claim No. 22522; 2007 NSSM 11)

Indexed As: MacKay v. Dauphinee

Nova Scotia Small Claims Court

O'Hara, Adjudicator

March 27, 2007.

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 court's jurisdiction.

An Adjudicator of the Nova Scotia Small Claims Court held that the court lacked jurisdiction to grant leave under the Sale of Land Under Execution Act.

Courts - Topic 6209

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Adjudicator (incl. time for decision) - As the assignee of a judgment, MacKay applied for an order granting leave to sell land owned by the debtor - At issue was the court's jurisdiction - Section 10(a) of the Small Claims Act (the Act) excluded claims for the recovery of land - MacKay asserted that s. 10(a) dealt with the court's adjudicative function, rather than enforcement, and that because he sought only permission to exercise a power of sale, the application did not require adjudication - An Adjudicator of the Nova Scotia Small Claims Court held that the court lacked jurisdiction to grant leave under the Sale of Land Under Execution Act - Sale of land under execution could be likened to foreclosure, over which the Supreme Court exercised a significant supervisory role - A statutorily-created court was not equipped to handle, either functionally or administratively, a matter of legal jurisdiction - Further, the reference in s. 31(1) of the Act to s. 45(1) of the Judicature Act (exemption of items of personal property from seizure under execution) indicated the legislature's intent that the Small Claims Court's enforcement powers would only extend to personal property, not land.

Execution - Topic 3881

Sale of land of judgment debtor - Application for sale - General - [See Courts - Topic 6209 ].

Practice - Topic 9767

Small claims - Jurisdiction - General - [See Courts - Topic 6209 ].

Cases Noticed:

Wexford Communications Ltd. et al. v. Buildrite Centres Inc. (1996), 156 N.S.R.(2d) 78; 461 A.P.R. 78 (S.C.), refd to. [para. 8].

Little (H.E.) Excavating Ltd. v. Blair's Custom Metals, [2006] N.S.R.(2d) Uned. 98; 2006 NSSC 251, refd to. [para. 8].

Wickwire Holm v. Wilkes (2005), 237 N.S.R.(2d) 197; 754 A.P.R. 197 (Sm. Cl.), consd. [para. 27].

Scaravelli & Associates v. Quinlan (2005), 241 N.S.R.(2d) 64; 767 A.P.R. 64 (Sm. Cl.), consd. [para. 27].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 2, sect. 10, sect. 31 [para. 10].

Counsel:

None disclosed.

This application was heard by O'Hara, Adjudicator, of the Nova Scotia Small Claims Court, who provided a decision orally on March 27, 2007, and filed the following written reasons on April 23, 2007.