Williams et al. v. Halifax (City), 2015 NSSC 228

• Judge: Duncan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 25, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 228;(2015), 364 N.S.R.(2d) 126 (SC)

Williams v. Halifax (2015), 364 N.S.R.(2d) 126 (SC);

    1146 A.P.R. 126

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.058

Rosella Williams, Mildred Denise Allen, Donald Brown, Shirley Brown, April Carvery, Blenn Edward Carvery, David Bruce Carvery, Dean Carvery, Edward Carvery, Edward Bayfield Carvery, John Edward Carvery, Nelson Carvery, Rose Charlene Carvery, Victor W. Carvery, Yvonne Carvery, Marleen Bernice Cassidy, Donna Darlene Dixon, Leonard James Dixon, Debra Lee Emerson-DeLeon, Bernice Flint, Idella Marie Flint, Olive Flint, Raymond Patterson Flint, Sheila Flint, Warren Grant, Ronald W. Howe, Marie Louise Izzard-Carvery, Marjorie Carrie-Ann Izzard, Martina Izzard, Phillip Daniel Izzard, Shawn Izzard, Alfreda Peters, Roger Leslie Thomas, Craig Vemb, Fleming Vemb, Jean Vemb, Leo Vemb, Isabel Wareham, Teresa Patricia Williams (Carvery), Clarence Brown (deceased), Wennison Byers (deceased), Vera Carter (deceased), Bernadine Carvery (deceased), Rosalyn Carvery (deceased), Doramae Clayton (deceased), Wayne S. Dixon (deceased), Ernest Flint (deceased), Dr. Ruth B. Johnson (deceased), Jack Carvery (deceased), Morton Flint (deceased), Gerald J. Johnson (deceased), Irene Izzard (deceased), and Albert Kenneth Sparks (deceased) (applicants) v. The City of Halifax, a body corporate (respondent)

(Hfx. No. 126561; 2015 NSSC 228)

Indexed As: Williams et al. v. Halifax (City)

Nova Scotia Supreme Court

Duncan, J.

July 30, 2015.

Summary:

In 1996, the Africville Genealogy Society sued the City of Halifax, both in its own right and as representative of named plaintiffs and unknown residents and descendants of Africville. The claim asserted that Africville was settled and established as a community in the early 1800s, by refugee slaves and settlers and also by residents of other local black communities from within Nova Scotia. Between 1962 to 1970, Halifax purchased the homes and lands of the residents, who were then relocated. The claim alleged that Halifax was liable to the former residents and their descendants for various tortious conduct and breaches of contract over the span of the community's existence. The action sought court orders setting aside the conveyances, together with damages for loss and injury allegedly suffered as a result of Halifax's actions. In 2010, a settlement agreement was reached. Not all plaintiffs consented. The plaintiffs' counsel attempted to withdraw. Numerous motions and decisions ensued in which, inter alia, the claims by the Society and numerous other plaintiffs were dismissed, the claims by deceased plaintiffs were stayed, plaintiffs were added, and counsel were ultimately permitted to withdraw. In 2014, the plaintiffs' new counsel brought motions seeking orders: (1) appointing personal representatives for the Estates of 14 persons; (2) lifting the stays of proceedings for each of the Estates; (3) confirming him as counsel for those persons intended to be named as the personal representatives; (4) amending the claim by eliminating all previously pleaded causes of action and instead alleging that Halifax failed to comply with the statutory requirements for expropriation of the Africville lands; (5) amending the style of cause; (6) setting a date for a motion for directions for the proposed certification of the amended claim under the Class Proceedings Act; and (7) awarding costs.

The Nova Scotia Supreme Court (1) confirmed that Pineo had been retained by 36 named and living plaintiffs; (2) appointed personal representatives for the Estates of the 14 deceased plaintiffs; (3) ordered that the stays of proceedings previously ordered in relation to those deceased plaintiffs be lifted; (4), (5) granted the motion to amend the pleadings "... by striking the Originating Notice and Statement of Claim in their entirety and substituting them with the Notice of Action and Statement of Claim filed with the Notice of Motion" subject to comments and exceptions; (6) told counsel to contact the court's assistant when they were ready to have a case management conference to discuss the future course of the action; and (7) agreed to hear oral submissions on costs, if the parties were unable to agree by the next case management conference.

Editor's Note: Prior reported decisions in this proceeding can be found at (2010), 297 N.S.R.(2d) 103; 943 A.P.R. 103, (2011), 300 N.S.R.(2d) 264; 950 A.P.R. 264 and (2011), 312 N.S.R.(2d) 188; 987 A.P.R. 188.

Estoppel - Topic 327

Estoppel by record (res judicata) - Res judicata as an estoppel - When applicable - In 1996, the Africville Genealogy Society sued the City of Halifax, both in its own right and as representative of named plaintiffs and unknown residents and descendants of Africville - The claim asserted that Africville was settled and established as a community in the early 1800s, by refugee slaves and settlers and also by residents of other local black communities from within Nova Scotia - Between 1962 to 1970, Halifax purchased the homes and lands of the residents, who were then relocated - The claim alleged that Halifax was liable to the former residents and their descendants for various tortious conduct and breaches of contract - The action sought court orders setting aside the conveyances, together with damages for loss and injury - In 2010, a settlement agreement was reached - Not all plaintiffs consented - After numerous motions, claims by the Society and numerous other plaintiffs were dismissed, the claims by deceased plaintiffs were stayed, plaintiffs were added, and the plaintiffs' counsel were permitted to withdraw - In 2014, the plaintiffs' new counsel brought motions seeking to, inter alia, (1) amend the claim by eliminating all previously pleaded causes of action and allege instead that Halifax had failed to comply with the statutory requirements for expropriation of the Africville lands; and (2) add former plaintiffs whose claims had been dismissed either by consent or for failing to prosecute the claim - Halifax objected to adding those plaintiffs - The Nova Scotia Supreme Court stated that the dismissals of the claims were presumptively final and binding and Halifax was entitled to rely on the finality of those orders - Adding these former plaintiffs at this time was not merely procedural - A party whose claim had been dismissed by court order could not simply say that they wanted to be rejoined as a party and debate the merits later - While the matter was presented as a motion to amend a statement of claim, and the court was governed by the discretion provided by Civil Procedure Rule 83, the motions were, in effect, an attempt to institute an action by claimants the defendant said were estopped from doing so - The issue of whether the lands were subject to expropriation was considered and spoken to in the 1996 claim, and the proposed claimants had consented to dismissal of their claims with that knowledge; the proposed cause of action "should" have been pleaded in the 1996 claim - By signing the release and consenting to dismissal, they represented to Halifax that they had accepted the settlement terms, knowingly and with legal counsel's advice - In doing so, they induced Halifax in words and by acts or conduct to alter its position to its detriment (it fulfilled the very significant obligations of the settlement agreement while surrendering its ability to defend against the claims of those persons) - Alternatively, even if the applicants were not estopped from being added, it would be inappropriate to grant permission on these facts - The court also had no basis to set aside an order that dismissed a plaintiff's claim for failure to prosecute - See paragraphs 58 to 103.

Estoppel - Topic 381

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In civil proceedings - [See Estoppel - Topic 327 ].

Estoppel - Topic 1023

Estoppel in pais (by conduct) - By agreement - Settlement - [See Estoppel - Topic 327 ].

Expropriation - Topic 2004

Practice and procedure - Actions - Limitation of actions - The defendant in a proposed class action submitted that Civil Procedure Rule 35.08(5) precluded the court from joining new parties because their claims were statute barred - The plaintiffs submitted that, having regard to the law of expropriation, it was not clear that such a defence was supportable, and the determination could only be made following a trial of the issue - The Nova Scotia Supreme Court denied the plaintiffs' motion to add the contested new parties for other reasons, making it unnecessary to respond to the limitation argument - However, the court agreed with the plaintiffs' submission - The court stated that "[t]he defendant's reliance on Rule 35.08(5) as precluding the court from permitting otherwise eligible litigants to advance a claim because their claims are statute barred is not a basis to deny the participation in the claim as a plaintiff, or as a member of a class. Pleading a limitation period defence is just that, a pleading. It does not prohibit a person from bringing their claim forward. The question of whether this may be certified as a common issue is for the proposed certification hearing." - See paragraphs 104 to 106 and 115.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - [See Expropriation - Topic 2004 ].

Practice - Topic 210.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Counsel (incl. choice of, instruction of, etc.) - In 1996, the Africville Genealogy Society sued the City of Halifax, both in its own right and as representative of named plaintiffs and unknown residents and descendants of Africville - The claim asserted that Africville was settled and established as a community in the early 1800s, by refugee slaves and settlers and also by residents of other local black communities from within Nova Scotia - Between 1962 to 1970, Halifax purchased the homes and lands of the residents, who were then relocated - The claim alleged that Halifax was liable to the former residents and their descendants for various wrongful conduct and sought orders setting aside the conveyances of the land, together with damages for the loss and injury allegedly suffered as a result of Halifax's actions - In 2010, a settlement agreement was reached - Not all plaintiffs consented - Plaintiff's counsel attempted to withdraw - Numerous motions and decisions ensued in which the claims by the Society and numerous other plaintiffs were dismissed, the claims by deceased plaintiffs were stayed, plaintiffs were added, and counsel were ultimately permitted to withdraw - The plaintiffs' new counsel brought a number of motions - The Nova Scotia Supreme Court, inter alia, (1) confirmed that Pineo had been retained by 36 named and living plaintiffs; (2) appointed personal representatives for the Estates of the 14 deceased plaintiffs; and (3) lifted the stays regarding those deceased plaintiffs - See paragraphs 18 to 31.

Practice - Topic 558

Parties - Death of a party - Appointment of legal representative of deceased - [See Practice - Topic 210.7 ].

Practice - Topic 652

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when denied - [See Estoppel - Topic 327 ].

Practice - Topic 653

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - [See Expropriation - Topic 2004 ].

Practice - Topic 711

Parties - Adding or substituting parties - Notwithstanding limitation period - [See Expropriation - Topic 2004 ].

Practice - Topic 2156

Pleadings - Amendment of pleadings - To reinstate discontinued claim - The plaintiffs in a proposed class action sought to join as plaintiffs those persons who had previously withdrawn or discontinued their claim in the action as against the defendant - The defendant consented to the addition of these plaintiffs - The Nova Scotia Supreme Court held that, having regard to the discretion permitted in Civil Procedure Rule 83, and with the consent of the defendant, and being satisfied that there was no impediment to permitting these plaintiffs to return as plaintiffs (Civil Procedure Rule 9), it was prepared to grant the motion to add those persons - See paragraphs 52 to 57.

Practice - Topic 5285

Trials - General - Stay of proceedings - Lifting of stay - [See Practice - Topic 210.7 ].

Practice - Topic 5357

Dismissal of action - General - Reinstatement or revival of dismissed action - [See Estoppel - Topic 327 ].

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - [See Estoppel - Topic 327 ].

Releases - Topic 5001

Interpretation - General principles - General - [See Estoppel - Topic 327 ].

Cases Noticed:

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321; 1997 NSCA 153, refd to. [para. 60].

Can-Euro Investments Ltd. v. Industrial Alliance Insurance and Financial Services Inc. (2013), 331 N.S.R.(2d) 341; 1051 A.P.R. 341; 2013 NSCA 76, refd to. [para. 61].

Bank of Montreal v. Ross (2013), 331 N.S.R.(2d) 307; 1051 A.P.R. 307; 2013 NSCA 70, refd to. [para. 61].

Saulnier v. Bain (2009), 277 N.S.R.(2d) 30; 882 A.P.R. 30; 2009 NSCA 51, refd to. [para. 61].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 61].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 35.08(5) [para. 46]; rule 83.11(2) [para. 51].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.)

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sydney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), p. 1285 [para. 63].

Counsel:

Robert Pineo, Jeremy Smith and Michael Scott, for the applicants;

Karen MacDonald and Martin Ward, Q.C., for the respondent.

This application was heard in Halifax, N.S., on February 25, 2015 (final written submissions received on July 27, 2015), by Duncan, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 30, 2015.