VanAmburg v. Halifax Condominium Corp. #267 et al.,

• Jurisdiction: Nova Scotia
• Judge: Barnett
• Neutral Citation: 2007 NSSM 23
• Citation: 2007 NSSM 23,(2007), 255 N.S.R.(2d) 211 (SmCl),255 NSR(2d) 211,(2007), 255 NSR(2d) 211 (SmCl),255 N.S.R.(2d) 211
• Date: 23 October 2006
• Court: Small Claims Court of Nova Scotia (Canada)

VanAmburg v. Halifax Condo. (2007), 255 N.S.R.(2d) 211 (SmCl);

    814 A.P.R. 211

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JN.026

Kevin VanAmburg (claimant) v. Halifax Condominium Corp. #267, Novacorp Properties Limited and Michael Iosipescu (defendants)

(Claim: 270292; 2007 NSSM 23)

Indexed As: VanAmburg v. Halifax Condominium Corp. #267 et al.

Nova Scotia Small Claims Court

Barnett, Adjudicator

January 8, 2007.

Summary:

The claimant sued the defendant Condominium Corp. et al. seeking exclusive use of a particular parking space and payment of $166.75 special damages representing the towing charge that he incurred when his vehicle was removed from the parking space. The defendants raised a jurisdictional defence, arguing that the Condominium Act provided for mandatory arbitration.

An Adjudicator of the Nova Scotia Small Claims Court determined the issue accordingly.

Courts - Topic 6204.2

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Land - Section 10(a) of Nova Scotia's Small Claims Court Act expressly excluded from the court's jurisdiction claims "for the recovery of land or an estate or interest therein" - The claimant sued the defendant Condominium Corp. et al. seeking exclusive use of a particular parking space and payment of $166.75 special damages representing the towing charge that he incurred when his vehicle was removed from the parking space - An Adjudicator of the Nova Scotia Small Claims Court held that it did not have jurisdiction because the claimant was seeking the recovery of land (the parking space) or at least an interest therein - Where the claimant was prepared to forego that portion of the claim, the portion for the towing charge of $166.75 would not necessarily be excluded from the Small Claims Court's jurisdiction as there was at least one obvious tortious cause of action that could be available to the claimant (e.g., trespass to a chattel, his vehicle) - The court was permitted to address claims seeking awards within its monetary limit "in respect of a matter or thing arising under a contract or a tort ..." (Small Claims Court Act, s. 9(a)) - See paragraphs 44 to 55.

Courts - Topic 6205

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Proper forum - The claimant sued the defendant Condominium Corp. et al. seeking exclusive use of a particular parking space and payment of $166.75 special damages representing the towing charge that he incurred when his vehicle was removed from the parking space - The defendants raised a jurisdictional defence, arguing that the Condominium Act provided for mandatory arbitration - An Adjudicator of the Nova Scotia Small Claims Court held that where at least one of the parties wanted to proceed in such a fashion, arbitration was to be used in place of any other method of dispute resolution (including court litigation) to resolve disputes such as the present one - Section 33 of the Condominium Act very broadly stated that where a class or certain classes of individuals were involved in a dispute "on any matter" to which the Condominium Act applied, and one of those parties gave appropriate notice of a desire to arbitrate the dispute, all parties were deemed to have entered into a written agreement to arbitrate the dispute - See paragraphs 26 and 27 and 37.

Courts - Topic 6206.1

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Torts - [See Courts - Topic 6204.2 ].

Practice - Topic 9767

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

Practice - Topic 9768

Small claims - Jurisdiction - Bars - [See Courts - Topic 6205 ].

Real Property - Topic 9061

Condominiums - Arbitration - General - [See Courts - Topic 6205 ].

Cases Noticed:

2475813 Nova Scotia Ltd. v. Rodgers et al. (2001), 189 N.S.R.(2d) 363; 590 A.P.R. 363 (C.A.), refd to. [para. 10].

Metropolitan Toronto Condominium Corp. No. 1385 et al. v. Skyline Executive Properties Inc. et al., [2004] O.T.C. 723 (Sup. Ct.), revd. (2005), 197 O.A.C. 144 (C.A.), refd to. [para. 22].

McKinstry et al. v. York Condominium Corp. No. 472 et al., [2003] O.T.C. 1078 (Sup. Ct.), refd to. [para. 23].

Strata Plan No. NW 498 v. McNeilly, [1989] B.C.J. No. 859 (S.C.), refd to. [para. 24].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 25].

Bell Express Vu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 212 D.L.R.(4th) 1, refd to. [para. 25].

Antigonish v. Antigonish (2006), 241 N.S.R.(2d) 332; 767 A.P.R. 332 (C.A.), refd to. [para. 25].

Logan v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2006), 246 N.S.R.(2d) 147; 780 A.P.R. 147 (C.A.), refd to. [para. 25].

Cox Downie v. Patterson (Bankrupt) (1992), 112 N.S.R.(2d) 148; 307 A.P.R. 148 (T.D.), refd to. [para. 46].

Nova Scotia (Attorney General) v. Gillis (1980), 39 N.S.R.(2d) 97; 71 A.P.R. 97 (C.A.), refd to. [para. 51].

Statutes Noticed:

Condominium Act, R.S.N.S. 1989, c. 85, sect. 33 [para. 13].

Authors and Works Noticed:

Collins-Williams, G.W., The Recovery of Land, in Special Lectures of the Law Society of Upper Canada (1961), generally [para. 50].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 25].

Manitoba, Law Reform Commission, Review of the Small Claims Court, Report No. 99, p. 35 [para. 48].

Nova Scotia, Law Reform Commission, Builders' Liens in Nova Scotia: Reform of the Mechanics' Lien Act, Final Report (2003), generally [para. 49].

Counsel:

Kevin VanAmburg, self-represented;

Halifax Condominium Corp. #267, self-represented;

Novacorp Properties Ltd., self-represented;

Philip Whitehead, for the defendant Michael Iosipescu.

This matter was heard on October 23, 2006, with the last written submission received on November 7, 2006, by Barnett, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on January 8, 2007.