Global Paving Contractors Ltd. v. Cragg, 2010 NSSC 468

SUPREME COURT OF NOVA SCOTIA Citation: Global Paving Contractors Ltd. v. Cragg, 2010 NSSC 468 Date: 20101125 Docket: Hfx No. 334533 Registry: Halifax Between: Global Paving Contractors Ltd. Plaintiff v. Robert Anthony Cragg Defendant LIBRARY HEADING Judge : The Honourable Justice C. Richard Coughlan Heard: November 25, 2010 (in Chambers), in Halifax, Nova Scotia Decision: November 25, 2010 (Orally) Written Release of Decision: December 29, 2010

Subject: Builders’ Lien - Application to transfer action to Small Claims Court

Summary: Action pursuant to Builders’ Lien Act commenced. Defendant elected to have matter adjudicated in Small Claims Court. The plaintiff claimed in default of payment a declaration the defendant’s interest in certain real property be sold and the proceeds be applied toward payment of the plaintiff’s claim. Issue: Does the Small Claims Court have jurisdiction to hear the plaintiff’s claim? Result: The proceeding is not to be transferred to the Small Claims Court.

The Builders’ Lien Act provides actions pursuant to the Act are to be tried in the Supreme Court, and the plaintiff’s claim for a declaration for the recovery of land or an estate or interest therein is therefore outside the jurisdiction of the Small Claims Court. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Global Paving Contractors Ltd. v. Cragg, 2010 NSSC 468 Date: 20101125 Docket: Hfx No. 334533 Registry: Halifax Between: Global Paving Contractors Ltd. Plaintiff v. Robert Anthony Cragg

Defendant Judge: The Honourable Justice C. Richard Coughlan Heard: November 25, 2010 (in Chambers), in Halifax, Nova Scotia Decision: November 25, 2010 (Orally) Written Release of Decision: December 29, 2010 Counsel: Matthew J. D. Moir, for the plaintiff David A. Grant, for the defendant Coughlan, J. : (Orally) [ 1 ] Robert Anthony Cragg elected, by election in writing dated September 9, 2010, to have this matter adjudicated in the Small Claims Court of Nova Scotia. By letter dated September 15, 2010, the Prothonotary, Annette M. Boucher, Q.C., wrote to Mr.

Cragg, with a copy to Matthew Moir, the solicitor for Global Paving Contractors Ltd., stating: I have your Notice of Election to Transfer in the Small Claims Court, however am unable to process this Notice of Election to Transfer at this time as there are some unanswered jurisdictional questions relating to the request. Firstly, this action was commenced by way of a Statement of Claim under the Builders’ Lien Act on August 19, 2010.

At that time a Certificate of Lis Pendens was also issued by the court and presumably filed at the Registry of Deeds office with regard to the property known as 851 East Petpeswick Road, East Petpeswick, Nova Scotia, PID #40863474. On the same day, a Notice of Alternate Claim in Debt was filed by the Plaintiff. The Statement of Claim was defended with your filing of a Notice of Defence on September 9, 2010.

The Small Claims Court Act and more particularly section 19(2) provides that where a proceeding commenced in the Supreme Court does not include a claim for general damages and is within the jurisdiction of the Small Claims Court, that the Defendant may elect to have the proceeding adjudicated in the Small Claims Court. I must therefore be satisfied as Prothonotary that the subject matter of the proceeding in the Supreme Court is within the jurisdiction of the Small Claims Court.

Section 10 of the Small Claims Court Act indicates that no claim may be made before the Small Claims Court that deals with:

a) the recovery of land or an estate or interest therein;

b) in respect of a dispute concerning the entitlement of a person under a will, or settlement, or an intestacy;

c) a claim for defamation or malicious prosecution;

d) a dispute which involves a landlord and a tenant or;

e) a

claim for general damages in excess of $100.00. Because the proceeding was commenced as a Builders’ Lien matter, it implies that there is some dispute and there is a claim relative to that dispute in a land interest. For this reason, I am of the view that the Small Claims Court does not have jurisdiction to deal with a proceeding which arises pursuant to the Builders’ Lien Act which this matter is. However, if you can direct me to authority that would say the opposite, I would be pleased to receive your submissions in that regard. Yours truly, [ 2 ] David A. Grant, on behalf of Mr.

Cragg, responded by letter dated September 30, 2010 and Mr. Moir responded by letter dated October, 1, 2010. The Prothonotary referred the matter to me. [ 3 ] I have read the material filed by counsel and heard the oral submissions of counsel for Mr. Cragg. [ 4 ] The action brought by Global Paving Contractors Ltd. is pursuant to the Builders’ Lien Act , R.S.N.S. 1989, c. 277. Section 34(1) of the Act provides: 34

(1) The liens created by this Act may be enforced by an action to be brought and tried in the Supreme Court of Nova Scotia according to the ordinary procedure of that Court, except as varied by this Act. [ 5 ]

Section 10 of the Small Claims Court Act , R.S.N.S. 1989, c. 430 provides: 10 Notwithstanding

Section 9, no claim may be made under this Act (

a) for the recovery of land or an estate or interest therein; (

b) in respect of a dispute concerning the entitlement of a person under a will, or settlement, or on an intestacy; (

c) for defamation or malicious prosecution; (

d) which involves a dispute between a landlord and a tenant to which the Residential Tenancies Act applies, other than an appeal of an order of the Director of Residential Tenancies made pursuant to

Section 17C of that Act; or (

e) for general damages in excess of one hundred dollars. [ 6 ] In the statement of claim, Global Paving Contractors Ltd. is seeking: 10. The plaintiff claims a declaration that, in default of such payment as set out above claimed, all the estate and interest of the defendants in the Premises be sold and the proceeds of sale be applied towards payment of the plaintiff’s claim and costs pursuant to the Builders’ Lien Act , R.S.N.S. 1989, c. 277. [ 7 ] That is an interest or estate in land and, therefore, outside the jurisdiction of the Small Claims Court. This proceeding is not

to be transferred to the Small Claims Court. [ 8 ] I award costs to Global Paving Contractors Ltd. in the amount of $250.00 in the cause. ________________________________ Coughlan, J.