Williams v. Halifax (City), 2011 NSSC 481

SUPREME COURT OF NOVA SCOTIA Citation: Williams v. Halifax (City), 2011 NSSC 481 Date: 20111222 Docket: Hfx 126561 Registry: Halifax Between: Rosella Williams, Mildred Denise Allen, Shirley Brown, Grace Byers, Darlene Cain, Wylie Cain, Elden Carvery, Dean Carvery, Nelson Carvery, Yvonne Carvery, Marleen Bernice Cassidy, Sharon David, Wayne S. Dixon, Andrew Downey, Olive Flint, Warren Grant, Ronald W.

Howe, Carolen Izzard, Martina Izzard, Karen Mayfield, Helena Parris, Alfreda Peters, Warren Scott, Albert Kenneth Sparks, Wendy Toussaint, Craig Vemb, Flemming Vemb, Jean Vemb, Leo Vemb, Geneva Ware, Isabel Marie Wareham, Clarence Brown (deceased), Wennison Byers (deceased), Vera Carter (deceased), Rosalyn Carvery (deceased), Dr. Ruth B. Johnson (deceased), Jack Carvery (deceased), Morton Flint (deceased), Gerald J.

Johnson (deceased), and Irene Izzard (deceased) Plaintiffs - and - The City of Halifax, a body corporate Defendant __________________________________________________________________ Motions Decisions __________________________________________________________________ Judge: The Honourable Justice Patrick J. Duncan Heard: Motions by Correspondence Last Submissions: December 19, 2011 Counsel: Mary Ellen Donovan,Q.C. and Karen MacDonald, for Defendant Halifax Applicants: Edward Carvery Donald Brown Alfreda Peters Dean Carvery Applicants - self represented By the Court : Motions to be added as plaintiffs

[ 1 ] Edward Carvery and Donald Brown have made motions by correspondence seeking that they be added as named individual plaintiffs in this proceeding. [ 2 ] Edward Carvery has provided affidavit evidence indicating that he was born in Africville and has close associations with the area that is the subject matter of the litigation. [ 3 ] Donald Brown has filed affidavit evidence indicating that Africville was the home of four previous generations in his family and that he, too, was an Africville resident.

He also claims an interest in the subject matter of this proceeding. [ 4 ] The Defendant, by its counsel, has filed written responses to each of these two motions in which they indicate that the Defendant does not oppose these motions. [ 5 ] Civil Procedure Rule 35.08 applies. It provides that a judge has the discretion to join a person as a party at any stage of the proceeding. There is a presumption that the effective administration of justice requires that each person who has an interest in the issues arising in the claim be before the Court in one hearing.

That presumption is rebuttable if the Court is satisfied that the three enumerated factors set out in Rule 35.08(3) have been met. Those are: (

a) joining a person as a party would cause serious prejudice to that person, or a party; (

b) the prejudice cannot be compensated in costs; (

c) the prejudice would not have been suffered had the party been joined originally, or would have been suffered in any case. [ 6 ] I am satisfied that Edward Carvery and Donald Brown have an interest in the issues set out in the Statement of Claim and that it is preferable that their claims proceed with those of the already named plaintiffs.

Although the action was filed a number of years ago, for reasons that are well understood by the parties the necessary steps to advance the litigation are at a very early stage, and so there will be no serious prejudice to other plaintiffs or the defendant by the addition of these individuals as plaintiffs. [ 7 ] I am satisfied that Messrs.

Brown and Carvery are consenting to being joined as plaintiffs, as required by Rule 35.08(4) . [ 8 ] In similar motions brought before the Court on November 23, 2011, the Defendant noted the provisions of Rule 35.08(5) which reads: Despite Rule 35.08(1) a judge may not join a party if the limitation period, or an extended limitation period has expired on the claim that would be advanced by or against the party, the expiry precludes the claim, and the person protected by the limitation period is entitled to enforce it. [ 9 ] The Defendant may, at some future time, assert that the claim cannot be prosecuted for offending the statutory limitation period.

As a Statement of Defence has not been filed at this point, it would be speculative for me to conclude that a limitation period defence could or will be advanced, that the expiry would preclude the claim in any event, or that the Defendant is entitled to enforce such a defence. Therefore, I am not satisfied that this is a basis upon which to deny the motions. [ 10 ] Having regard to these findings and the evidence before me, I conclude that it is appropriate to grant the motions. Edward Carvery and Donald Brown will be added as plaintiffs.

[ 11 ] Pursuant to Rule 35.08(6)(a) , I direct that the heading of the action be amended to include the names of Edward Carvery and Donald Brown. [ 12 ] I direct that the Prothonotary issue a letter to Edward Carvery and to Donald Brown in the form sent to other plaintiffs on November 24, 2011, including the Appearance Day Notice which requires the parties to attend in court on January 4, 2012 at 9:30 a.m. to respond to the Prothonotary’s motion made pursuant to Civil Procedure Rule 4.22 seeking to dismiss this action.

Motions to Appear by Assistant [ 13 ] Two motions have been filed by correspondence seeking that the plaintiffs Dean Carvery and Alfreda Peters be permitted to appear on January 4, 2012 by an assistant. Dean Carvery [ 14 ] Mr. Carvery has filed information indicating that he is a resident of Calgary, Alberta and has insufficient resources to travel to Halifax for the January 4 th appearance.

He offers alternative remedies: either to be represented by his Assistant, Nelson Carvery, or to participate by telephone conference. [ 15 ] Nelson Carvery is a named plaintiff and has appeared in this matter on previous occasions. He is familiar with the action. Under ordinary circumstances, I would be satisfied with appearance by Nelson Carvery alone. However, this matter is complicated by the multiple parties involved and the long period of dormancy in advancing the litigation.

The Prothonotary’s motion to dismiss under Rule 4.22 is an important appearance to determine whether the claims of any individual plaintiffs will be permitted to proceed. Each plaintiff should have an opportunity to be heard on such a critical question. [ 16 ] I indicated in the last court appearance that for those claims which survive the Prothonotary’s motion, the parties should expect that I will be giving directions to ensure that the litigation proceeds in an orderly and expeditious manner.

For this I will need the in-person participation of all parties on January 4th. [ 17 ] Having said that, I am sympathetic to Dean Carvery’s financial concerns and so I will permit him to participate by way of telephone conference call. [ 18 ] Therefore, I direct that Dean Carvery may participate in the January 4, 2012 motion by the Prothonotary, by telephone conference call. I direct that appropriate arrangements be made to assist Mr. Carvery to participate in this manner. Alfreda Peters [ 19 ] Ms. Peters has provided evidence indicating that she is a resident of Houston, Texas, U.S.A.

Her husband is described as being in poor health and unable to travel. As she is required to provide care for her husband, Ms. Peters advises that she cannot attend the hearing on January 4 th in person. She, too, requests that Nelson Carvery be permitted to participate as her Assistant. [ 20 ] Ms. Peters does not indicate whether she can participate by telephone conference call, but for the same reasons that I outlined above in relation to Dean Carvery’s motion, I believe it is important that she participate personally in the hearing. Recognizing her circumstances, I am prepared to permit Ms.

Peters to participate in the January 4 th hearing by telephone conference call.

[ 21 ] I direct that appropriate arrangements be made to assist Ms. Peters in participating in this manner. If there is any reason why she cannot so participate, then I will receive further representations by correspondence speaking to the question. Duncan, J.