Tanner v. Lunenburg (Town), (2012) 324 N.S.R.(2d) 156 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 27, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 324 N.S.R.(2d) 156 (SC);2012 NSSC 424

Tanner v. Lunenburg (2012), 324 N.S.R.(2d) 156 (SC);

    1029 A.P.R. 156

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.016

Bernard Calvin Tanner (appellant) v. Town of Lunenburg (respondent)

(Bwt. No. 406078; 2012 NSSC 424)

Indexed As: Tanner v. Lunenburg (Town)

Nova Scotia Supreme Court

Rosinski, J.

November 28, 2012.

Summary:

The plaintiff claimed against the defendant Town for damage occasioned to the grave sites of his father, mother and brother by agents of the Town in the Town's public cemetery in December 2004. Without a hearing and without permitting the parties to make submissions and present evidence, a Small Claims Adjudicator decided that the 12-month limitation period in s. 512 of the Municipal Government Act inevitably would defeat any chance of success. The plaintiff appealed.

The Nova Scotia Supreme Court held that the Adjudicator erred in law and denied procedural fairness to the plaintiff in proceeding as he did. The court rejected the Town's argument that, in spite of such errors, the court should dismiss the appeal because the deadline for the plaintiff to have filed his claim was, on the most generous reading of the evidence and legislation, October 2011, and he had filed his claim on July 6, 2012. It would clearly be contrary to the interests of justice to dismiss the plaintiff's claim by dismissing good grounds of appeal raised by him. The court ordered a new hearing before a different Adjudicator.

Courts - Topic 6204

Provincial courts - Nova Scotia - Small Claims Court - Appeals - [See Practice - Topic 9256 ].

Practice - Topic 9256

Appeals - Judgment by appeal court - Remittal to lower court - When appropriate - The plaintiff claimed against the defendant Town for damage occasioned to the grave sites of his father, mother and brother by agents of the Town in the Town's public cemetery in December 2004 - The Nova Scotia Supreme Court held that a Small Claims Adjudicator erred in law and denied procedural fairness to the plaintiff in deciding, without a hearing and without permitting the parties to make submissions and present evidence, that the 12-month limitation period in s. 512 of the Municipal Government Act inevitably would defeat any chance of success - The court rejected the Town's argument that, in spite of such errors, the court should dismiss the plaintiff's appeal because the deadline for the plaintiff to have filed his claim was, on the most generous reading of the evidence and legislation, October 2011, and he had filed his claim on July 6, 2012 - It would clearly be contrary to the interests of justice to dismiss the plaintiff's claim by dismissing good grounds of appeal raised by him - The court ordered a new hearing before a different Adjudicator.

Practice - Topic 9759

Small claims - Appeals - New trials - [See Practice - Topic 9256 ].

Practice - Topic 9762

Small claims - Appeals - Grounds - [See Practice - Topic 9256 ].

Cases Noticed:

Stewiacke Home Hardware v. Leighton (2012), 316 N.S.R.(2d) 315; 1002 A.P.R. 315; 2012 NSSC 184, dist. [para. 2].

Halifax (Regional Municipality) v. Nicholson (2009), 283 N.S.R.(2d) 312; 900 A.P.R. 312; 2009 NSCA 109, refd to. [para. 31].

K.A.S. v. Reddick (1997), 160 N.S.R.(2d) 5; 473 A.P.R. 5 (C.A.), refd to. [para. 37].

Counsel:

Bernard Calvin Tanner, the appellant, self-represented;

Patrick Burke, Q.C., for the respondent.

This appeal was heard in Bridgewater, N.S., on November 27, 2012, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered an oral decision on November 28, 2012, and the following written decision on December 6, 2012.