Arthur Melendy First Plaintiff And: Bernice Melendy Second Plaintiff And: Town of Gander Defendant, 2018 NLSC 9

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Melendy v. Town of Gander , 2018 NLSC 9 Date : January 22, 2018 Docket : 201705G0118 Between: Arthur Melendy First Plaintiff And: Bernice Melendy Second Plaintiff And: Town of Gander Defendant Before: Justice Kendra J. Goulding Place of Hearing: Gander, Newfoundland and Labrador Date of Hearing: December 15, 2017

Summary: The Defendant applied to set aside the Plaintiffs’ Statement of Claim pursuant to Rule 10.05 of the Rules of the Supreme Court on the grounds the Defendant had previously commenced a proceeding in the Provincial Court arising from the same subject matter and involving the same parties. Much of the Defendant’s argument concentrated on the legislative right of the Defendant to act as it is alleged to have done. The Court found that Rule 10.05 does not involve a consideration of the merits of a claim.

The application of the Defendant was dismissed as the Plaintiffs’ claim in the Supreme Court includes but is not limited to aggravated and/or punitive damages in excess of $25,000 and solicitor and client costs which is outside the jurisdiction of the Provincial Court. The Court ordered that the Defendant’s action in the Provincial Court be transferred to the Supreme Court to avoid a multiplicity of proceedings and inconsistent verdicts. Appearances: Jeremy D. Loeb Appearing on behalf of Arthur Melendy Jeremy D. Loeb Appearing on behalf of Bernice Melendy Mark T.

McWhirter Appearing on behalf of Town of Gander Authorities Cited: CASES CONSIDERED: Newhook v. City of St. John’s , 2015 NLPC 0113 C00322; Bartlett v. City of Corner Brook , 2003 NLCA 10 ; Moravian Union Inc. v. N.S.E.J. , 2003 NLCA 28 ; STATUTES CONSIDERED: Municipalities Act , SNL1999

Chapter M-24 ; Small Claims Act , RSNL1990

Chapter S-16; Judicature Act , RSNL 1990, C.J. – 4. RULES CONSIDERED: Rules of the Supreme Court , SOR/2002-156 . REASONS FOR JUDGMENT Goulding, J. : INTRODUCTION [ 1 ] The Defendant seeks an order setting aside the Statement of Claim pursuant to Rule 10.05 of the Rules of the Supreme Court on the grounds that the Defendant had previously commenced a proceeding in the Provincial Court of Newfoundland and Labrador arising from the same subject matter involving the same parties.

The Defendant submits the Plaintiffs have the option to file a counterclaim in the Provincial Court seeking the same relief as in the Statement of Claim. [ 2 ] The Plaintiffs argue that their claim against the Defendant includes aggravated and punitive damages in excess of $25,000 and solicitor and client costs, which is outside the jurisdiction of the Provincial Court. background and pleadings [ 3 ] The Plaintiffs are the owners of property located at 4 Peterson Drive, Gander, Newfoundland and Labrador. The Statement of Claim filed in the Supreme Court on October 12, 2017 alleges that:

a) An employee of the Defendant wrote the First Plaintiff on March 10, 2016 advising of the Defendant’s intention to develop a new cul-de-sac at the end of Peterson Drive. The construction would encroach upon the Plaintiffs’ property. Some months later, the Defendant advised the First Plaintiff that no expropriation of the property would be necessary.

b) The Defendant mobilized equipment and labour force on Peterson Drive on August 11, 2016 to commence the work on the cul-de- sac without the knowledge or consent of the Plaintiffs.

c) The Defendant and/or its employees and agents demanded on August 12, 2016 that the Plaintiffs immediately move their motor vehicles and/or recreational vehicles to another location to allow the Defendant to enter onto the Plaintiffs’ property.

d) The Defendant had never corresponded with the Plaintiffs about access to the Plaintiffs’ property prior to August 12, 2016.

e) On August 18, 2016, the Defendant again demanded the removal of the Plaintiffs’ vehicles and advised the Plaintiffs’ son that failure to do so would result in him being arrested and charged with a criminal offence.

f) After some delay, the Plaintiffs’ son complied with the demands on August 12 and 18, 2016.

g) The Defendant produced an invoice to the First Plaintiff on March 17, 2017 for $1,716.67 described as “interference costs”.

h) On October 4, 2017, the Defendant served a Statement of Claim from the Provincial Court on the Plaintiffs seeking payment of the “interference costs”.

i) On October 5, 2017, the Plaintiffs were advised by the “Registrar” of the Provincial Court that no such action had been commenced against the Plaintiffs.

j) The Plaintiffs are claiming from the Defendant:

a) damages for trespass, breach of the Municipalities Act and delay in repairing property damage;

b) costs to repair the property ($575);

c) aggravated and/or punitive damages;

d) judgment interest;

e) costs on a solicitor and client and party and party basis;

f) such further and other relief as the Court may deem fit and just. [ 4 ] The Defendant issued a Statement of Claim in the Provincial Court on October 10, 2017, which had not been served on the Plaintiffs when they commenced the proceeding in the Supreme Court on October 11, 2017. analysis [ 5 ] The Defendant argues that it had a legislative right to enter the Plaintiffs’ property as well as a legislative power to remove the Plaintiffs’ vehicles in order to complete the construction of the cul-de-sac.

Further, the Defendant submits there is a procedure in place regarding compensation for injurious affection under the Municipalities Act if there is any damage to the Plaintiffs’ property as a result of the construction. [ 6 ] As well, the Defendant asserts there is no evidence to support the notion that any damages to the Plaintiffs would exceed the $25,000 limit in the Provincial Court. The Defendant cited case law to demonstrate that damages for trespass against municipalities “come nowhere near this range”. In Newhook v. City of St.

John’s , 2015 NLPC 0113 C00322, Skanes, Provincial Court Judge, found the Defendant had trespassed, as it has not given reasonable notice to the Plaintiff as required under the Municipalities Act . She awarded $500 in nominal damages due to a lack of evidence tendered by the Plaintiff. [ 7 ] The Defendant also referred to Bartlett v.

City of Corner Brook , 2003 NLCA 10 as authority for its submission that jurisdiction to determine the amount of compensation payable for injurious affection has been assigned to a Board of Assessors. [ 8 ] However, I note that Welsh, J.A. stated at paragraphs 20 and 21: 20 In the result, any injurious affection to Bartlett's property resulting from the expropriation must be dealt with under

Part VIII of the Act. A board of assessors appointed in accordance with the Act has jurisdiction over this component. 21 On the other hand, the common law will apply to determine what compensation, if any, is payable for claims of trespass and nuisance not related to the expropriation. These issues must be dealt with by the court. [ 9 ] The Defendant also relied on Moravian Union Inc. v. N.S.E.J. , 2003 NLCA 28 , which I shall discuss later in my analysis. [ 10 ] The Plaintiffs submit the Defendant breached the Municipalities Act as it did not give reasonable notice to the Plaintiffs prior to engaging in an activity involving private property as required under

section 160. [ 11 ] Further, the Plaintiffs allege that the law enforcement officer employed by the Defendant exceeded his or her authority by threatening arrest and criminal prosecution when the son of the Plaintiffs briefly refused to follow the demands on August 12 and 18, 2016 in order to allow him an opportunity to consult with the Defendant. [ 12 ] The Plaintiffs argue the Defendant and/or its agents acted in a highhanded manner and used intimidation and misrepresentation in its dealings with the Plaintiffs.

The Plaintiffs did not set out a specific amount for all damages claimed but advised the Defendant and the Court that they are seeking in excess of $25,000 plus solicitor and client costs which claims are outside the jurisdiction of the Provincial Court. [ 13 ] I agree that the Plaintiffs could file a counterclaim in the Provincial Court and if it exceeded the jurisdiction of the Provincial Court, the Plaintiffs could then apply to the Supreme Court for an order that the whole proceeding be transferred. (see

section 6 Small Claims Act ) [ 14 ] In determining such an application, the Court would consider the forum where all matters in controversy between the parties may be completely and finally determined and where a multiplicity of proceedings concerning the matters may be avoided (see

section 99 Judicature Act , RSNL 1990, C.J. – 4). However, prior to being served with the Provincial Court documents, the Plaintiffs had already commenced a proceeding in this court. [ 15 ] I have considered that the Plaintiffs are not prepared to abandon the excess of their claim over and above the monetary jurisdiction of the Provincial Court or their request for solicitor and client costs. Further, the Provincial Court proceeding has not been adjudicated on. I fail to see any prejudice to the Defendant should the matter be heard entirely in this court.

Considering the Plaintiffs’ current position and claim against the Defendant, the nature of the proceeding commenced by the Defendant in the Provincial Court has

changed in complexion and character and may result in substantial legal costs to both parties that could not be claimed in the Provincial Court, which may be unjust to the successful litigant. [ 16 ] Much of the Defendant’s argument concentrated on the legislative right of the Defendant to act as it is alleged to have done. However, Rule 10.05 does not involve a consideration of the merits of a claim. Therefore, any submission by the Defendant that the Plaintiffs, if successful, will not be awarded total damages anywhere near $25,000 is not relevant in the application.

I return to Moravian Union (supra) wherein Wells, C.J.N. (as he then was) stated at paragraphs 25 – 27: 25 As is obvious from the content of Rule 10.05, it enables the court to take certain actions, at the request of the defendant, without the defendant submitting to the jurisdiction of the court. There are several other Rules (14.24, 17A, 37, 38 and perhaps 7.04 where more than one defendant is named) which permit expeditious disposition of actions, on the merits of the action as pleaded, without a full scale trial, where the circumstances warrant.

Rule 10.05, on the other hand, is clearly intended to enable a defendant to have an originating document or service of the document set aside where questions of jurisdiction, convenience of forum, or the propriety of procedural steps employed, warranted such setting aside, but leaving all aspects of the merits of the case undecided. 26 Rule 10.05 was never intended to be a substitute for an application under Rule 14.24 to have the statement of claim struck because it discloses no reasonable cause of action, or a substitute for an expedited or

summary trial under Rule 17A, or a substitute for a preliminary determination of a discrete but critical issue under Rules 37 or 38.

Still less is there any justification for concluding that it enables expeditious determination of issues as to merit, binding on the plaintiff, while retaining the option in a defendant to subsequently contest the jurisdiction of the very court from which that defendant sought a determination as to the legal merit of the plaintiff's allegations. 27 It is inconceivable that any defendant could ask a court to determine, with finality, the legal merit as to issues between that defendant and other parties, without submitting to the jurisdiction of the court and without being bound by the outcome, after any permitted appeal.

Such an

interpretation would effectively enable a defendant to seek a legal opinion, not a decision, from the court. Rule 10.05 was never intended to be so used. I conclude, therefore, that applications under Rule 10.05 should be confined to applications that do not involve resolution of the legal merit of any issue raised in the originating document. [emphasis mine] conclusion [ 17 ] In conclusion, the nature of the proceeding commenced by the Defendant in the Provincial Court has changed in complexion and character with the issuance of the Plaintiffs’ proceeding in this court.

The Plaintiffs’ claim is outside the jurisdiction of the Provincial Court as the Plaintiffs are not prepared to abandon the excess nor their request for solicitor and client costs. I fail to see any prejudice to the Defendant should this matter be heard entirely by the Supreme Court. [ 18 ] The application of the Defendant under Rule 10.05 is dismissed. The Plaintiffs’ request that the proceeding in the Provincial Court be transferred to the Supreme Court of Newfoundland and Labrador is granted. This will avoid a multiplicity of proceedings and the possibility of inconsistent verdicts.

Costs are awarded to the Plaintiffs on a party and party basis, column 3. _____________________________ Kendra J. Goulding Justice