Pettipas v. Bell Aliant Regional Communications Inc., (2015) 356 N.S.R.(2d) 233 (SC)

• Judge: Scaravelli, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 17, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 356 N.S.R.(2d) 233 (SC);2015 NSSC 58

Pettipas v. Bell Aliant (2015), 356 N.S.R.(2d) 233 (SC);

    1126 A.P.R. 233

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.047

Marshall Pettipas and Edna Pettipas (plaintiffs) v. Bell Aliant Regional Communications Inc. (defendant)

(Antigonish No. 369959; 2015 NSSC 58)

Indexed As: Pettipas v. Bell Aliant Regional Communications Inc.

Nova Scotia Supreme Court

Scaravelli, J.

February 24, 2015.

Summary:

Bell Aliant leased land from the plaintiffs for the purpose of constructing a cell phone tower. The plaintiffs sued Bell Aliant, alleging breach of contract due to fraudulent and negligent misrepresentation as well as a breach of implied condition and warranty. The plaintiffs sought remedies, including rescission of the lease and removal of the cell phone tower, damages relating to their property and damages for personal injuries. Bell Aliant filed a motion for summary judgment on evidence.

The Nova Scotia Supreme Court, in a decision reported 341 N.S.R.(2d) 119; 1081 A.P.R. 119, dismissed the motion. Thereafter, Bell Aliant moved to strike a Notice of Trial by Jury.

The Nova Scotia Supreme Court granted the motion and struck the jury notice.

Practice - Topic 5102

Juries and jury trials - Right to a jury - Setting aside a jury notice - The Nova Scotia Supreme Court discussed when a jury notice would be struck - See paragraphs 7 to 11.

Practice - Topic 5102

Juries and jury trials - Right to a jury - Setting aside a jury notice - Bell Aliant leased land from the plaintiffs for the purpose of constructing a cell phone tower - The plaintiffs sued Bell Aliant, alleging breach of contract due to fraudulent and negligent misrepresentation as well as a breach of implied condition and warranty - The plaintiffs sought a number of remedies, including damages - The plaintiffs elected trial by jury - Bell Aliant moved to strike the jury notice - The Nova Scotia Supreme Court granted the motion and struck the jury notice - The case was complex because of the nature and volume of the evidence - There were substantive issues of negligent and fraudulent misrepresentation, implied terms and breaches of implied warranty that involved questions of mixed law and fact that added to the complexity - Further, there were associated time constraints.

Cases Noticed:

Anderson v. Cyr et al. (2014), 345 N.S.R.(2d) 329; 1092 A.P.R. 329; 2014 NSCA 51, refd to. [para. 7].

MacIntyre v. Nova Scotia Power Corp. (1995), 145 N.S.R.(2d) 209; 418 A.P.R. 209 (S.C.), refd to. [para. 9].

Quinn Estate v. Bitar Deli Ltd. (2009), 286 N.S.R.(2d) 96; 909 A.P.R. 96; 2009 NSCC 412, refd to. [para. 9].

Big X Holdings Inc. et al. v. Royal Bank of Canada (2014), 351 N.S.R.(2d) 286; 1111 A.P.R. 286; 2014 NSSC 368, refd to. [para. 16].

Anderson v. QEII Health Sciences Centre et al. (2010), 287 N.S.R.(2d) 316; 912 A.P.R. 316; 2010 NSCA 7, refd to. [para. 19].

Green v. T&T Inspections & Engineering Ltd. et al. (2012), 315 N.S.R.(2d) 173; 998 A.P.R. 173; 2012 NSSC 131, refd to. [para. 20].

Counsel:

Jamie MacGillivray, for the plaintiffs;

Michelle Kelly, for the defendant.

This application was heard in Antigonish, N.S., on December 17, 2014, before Scaravelli, J., of the Nova Scotia Supreme Court, who delivered the following decision on February 24, 2015.