Rice v. Condran, (2012) 314 N.S.R.(2d) 226 (SC)

• Judge: Boudreau, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 06, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 314 N.S.R.(2d) 226 (SC);2012 NSSC 95

Rice v. Condran (2012), 314 N.S.R.(2d) 226 (SC);

    994 A.P.R. 226

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MR.018

Mark Rice and Glenda Rice (plaintiffs) v. Paula Condran (defendant)

(Hfx No. 322416; 2012 NSSC 95)

Indexed As: Rice v. Condran

Nova Scotia Supreme Court

Boudreau, J.

March 6, 2012.

Summary:

The plaintiffs purchased two subdivision building lots. The deeds contained standard subdivision restrictive covenants, including a prohibition against keeping horses and other livestock. The restrictive covenants were subject to a "waiver clause" whereby the grantor/ developer could waive any and all covenants respecting any lot in the subdivision. Shortly after purchasing the lots, the plaintiffs saw a neighbour building a horse barn and discovered that the grantor/developer had waived the no horses prohibition for the neighbour's lot. The plaintiffs decided not to build and put their lots up for sale. The plaintiffs sued their lawyer for damages, claiming that she was negligent in failing to explain to them the legal effect of the waiver clause. They argued that had the clause been properly explained to them, they would not have purchased the lots.

The Nova Scotia Supreme Court dismissed the action. Notwithstanding that the lawyer followed the bar's standard practice, she was negligent in failing to explain the legal effect of the waiver clause on the ground that the standard practice was not reasonable. However, the court was satisfied that, had the waiver clause been properly explained to them, the plaintiffs would still have purchased the two lots. Accordingly, any loss suffered was not caused by the lawyer's negligence.

Barristers and Solicitors - Topic 2594

Negligence - Particular negligent acts - Failure to inform or advise client - [See Barristers and Solicitors - Topic 2598.3 ].

Barristers and Solicitors - Topic 2598.3

Negligence - Particular negligent acts - Re purchase of property by client - The plaintiffs purchased two subdivision building lots - The deeds contained standard subdivision restrictive covenants, including a prohibition against keeping horses and other livestock - The restrictive covenants were subject to a "waiver clause", whereby the grantor/developer could waive any and all covenants respecting any lot in the subdivision - Shortly after purchasing the lots, the plaintiffs saw a neighbour building a horse barn and discovered that the grantor/developer had waived the no horses prohibition for the neighbour's lot - The plaintiffs decided not to build and put their lots up for sale - They sued their lawyer for damages, claiming that she was negligent in failing to explain to them the legal effect of the waiver clause - They claimed that had the clause been properly explained to them, they would not have purchased the lots - The Nova Scotia Supreme Court dismissed the action - The lawyer followed the standard practice of providing purchasers with a copy of the restrictive covenants to look over and raise any concerns with the lawyer - There was expert evidence that the "waiver clause" was not unusual and that the standard practice was not to specifically explain its effect to purchasers - Notwithstanding that the lawyer followed the bar's standard practice, she was negligent in failing to explain the legal effect of the waiver clause because the standard practice was unreasonable - However, the court was satisfied that, had the waiver clause been properly explained, the plaintiffs would still have purchased the two lots - Accordingly, any loss suffered was not caused by the lawyer's negligence.

Barristers and Solicitors - Topic 2910

Negligence - Defences - Prevailing standard of practice - The Nova Scotia Supreme Court stated that "the case law is clear that the common professional or prevailing practice is not necessarily determinative of the standard of care. That practice must also be reasonable in the circumstances of the particular lawyer/ client situation." - See paragraph 30.

Barristers and Solicitors - Topic 2910

Negligence - Defences - Prevailing standard of practice - [See Barristers and Solicitors - Topic 2598.3 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution test") - [See Barristers and Solicitors - Topic 2598.3 ].

Cases Noticed:

Meister v. Coyle (2010), 290 N.S.R.(2d) 215; 920 A.P.R. 215; 2010 NSSC 125, refd to. [para. 26].

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, refd to. [para. 28].

Glivar v. Noble (1985), 8 O.A.C. 60 (C.A.), refd to. [para. 30].

Edward Wong Ltd. v. Johnson, Stokes, [1984] 2 W.L.R. 1 (P.C.), refd to. [para. 30].

Confederation Life Insurance Co. v. Shepherd et al. (1992), 29 R.P.R.(2d) 271; 1992 CarswellOnt 634 (Gen. Div.), refd to. [para. 31].

Dorion v. Roberge et al., [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81, refd to. [para. 32].

Cheevers v. Halifax (Regional Municipality) (2006), 243 N.S.R.(2d) 184; 772 A.P.R. 184; 2006 CarswellNS 187; 2006 NSCA 54, refd to. [para. 33].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 33].

Major v. Buchanon (1975), 9 O.R.(2d) 491 (S.C.), refd to. [para. 35].

MacCulloch v. McInnes Cooper & Robertson (2001), 189 N.S.R.(2d) 324; 590 A.P.R. 324; 2001 CarswellNS 8; 2001 NSCA 8, refd to. [para. 36].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 CarswellAlta 130; 2007 SCC 7, refd to. [para. 39].

Chaster v. LeBlanc (2009), 273 B.C.A.C. 227; 461 W.A.C. 227; 2009 BCCA 315, refd to. [para. 41].

Counsel:

Christopher I. Robinson, for the plaintiffs;

Stephen Kingston, for the defendant.

This action was heard on November 7-8, 2011, at Halifax, N.S., before Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 6, 2012.