Miles v. Tan, 2012 NSSC 322

SUPREME COURT OF NOVA SCOTIA Citation: Miles v. Tan , 2012 NSSC 322 Date: 20120717 Docket: Hfx No. 355703 Registry: Halifax Between: Matthew Miles and Trisha Lea Miles Plaintiffs v. Kok-Keong Tan and Sam Mooi Tan Defendants LIBRARY HEADING Judge : The Honourable Justice M. Heather Robertson Heard: July 17, 2012 in Halifax, Nova Scotia Written Release of Decision: September 11, 2012 (Orally - July 17, 2012) Subject: Application for

Summary Judgment - Rule 13.04. (Respondents sue after property closing upon discovering oil leak and resultant damage in basement of home.) Issue: Whether the applicants misrepresented the condition of a house, in a property disclosure statement they signed before the sale of the house to the respondents. Subsequent oil spill and resulting damage found by respondents after the closing. Whether in face of applicants’ utter denial of any knowledge of an oil spill there is any material fact at issue for trial. Result: The motion for

summary judgment is denied. Not the motion judge’s role to place herself in the role of the trier of facts. There are disputed issues of material fact and issues of credibility of witness that require trial. 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: Miles v. Tan , 2012 NSSC 322 Date: 20120717 Docket: Hfx No. 355703 Registry: Halifax Between: Matthew Miles and Trisha Lea Miles Plaintiffs/Respondents v. Kok-Keong Tan and Sam Mooi Tan Defendants/Applicants Judge: The Honourable Justice M. Heather Robertson Heard: July 17, 2012, in Halifax, Nova Scotia Written Release of Decision: September 11, 2012 (Orally - July 17, 2012) Counsel: William L. Ryan, Q.C., for the plaintiffs/respondents David G. Hutt, for the defendants/applicants Robertson, J. : (Orally) [ 1 ] Well, you have both correctly made reference to the often quoted cases that govern the matter of motions for

summary judgment. As well, I am aware of the Gesner case ( Gesner v. Ernst , 2007 NSSC 146 ) and the way the courts deal with property condition disclosure statements and what must be proven at trial to succeed. But in my view, my role is not to be the trier of fact in examining this motion but to make a determination about whether there are issues for trial and material issues of fact that are in dispute. In the circumstances of this case I do not fault Mr. Ryan for not aggressively pursuing the opportunity to cross-examine.

I have considered the pleadings and considered the affidavit evidence before me of the Tans and of Hugh Miles. The photographs attached thereto are of particular interest. The issue is whether the applicants misrepresented the condition of the house in a property disclosure statement they signed before the sale of the house to the respondents. [ 2 ] In light of the discovery of this serious oil spill that obviously pre-dated the respondents ’ purchase of the property, I say, that

because I have looked at the photographs attached to Mr. Miles ’ s affidavit, it seems to me that there are obviously issues of the applicants ’ earlier knowledge of any oil spills or any smell emanating from the area of the basement or their knowledge of the condition of the basement floor from the time of their purchase of the property.

As well, any facts surrounding the replacement of an oil tank in 2003 should also be explored. [ 3 ] The fact that there is affidavit evidence from the applicants ’ family denying any smell or knowledge of an oil leak in the basement is a material fact at issue to be decided by a trial judge. I do not feel that is my job based on this mere denial to make a determination of the credibility of these individuals and the facts surrounding this disputed issue of their knowledge. [ 4 ] I do not believe these are factual matters that can be addressed on a

summary judgment motion. I have reviewed the cases upon which you relied and I would in particular rely on the Guarantee case ( Guarantee Co. of North America v. Gordon Capital Corp., [1993] 3 SCR 423 ) which clearly sets out what a chamber judge ’ s narrow role is. This is not a mere cakewalk for either party and I believe there are issues of material fact that require trial. I am denying the motion and you will carry on in the trial process. Costs will follow the cause in this one. Justice M. Heather Robertson