Tanner v. Lunenburg (Town), 2012 NSSC 424

SUPREME COURT OF NOVA SCOTIA Citation: Tanner v. Lunenburg (Town), 2012 NSSC 424 Date: 20121128 Docket: Bwt No. 406078 Registry: Bridgewater Between: Bernard Calvin Tanner Appellant v. Town of Lunenburg Respondent LIBRARY HEADING Judge: The Honourable Justice Peter P. Rosinski Heard: November 27, 2012, in Bridgewater, Nova Scotia Written Decision: December 6, 2012 (Oral decision rendered on November 28, 2012) Subject: Small Claims Appeal - s. 32, Small Claims Court Act.

Summary: Mr. Tanner ’ s claim against the Town was based on alleged misconduct by Town agents/employees who damaged several caskets and vaults of his family members in the public cemetery. The Town pleaded s. 512 of the Municipal Government Act (12-month limitation period) as one of its defences. Town counsel also wrote in a letter to the Prothonotary filing its defence, to request that the Adjudicator consider deciding the limitation period issue to avoid Mr. Tanner needlessly travelling from Alberta for the hearing.

The Adjudicator decided without further submissions, hearing evidence or even giving the parties those opportunities, that the limitation period was a complete defence and dismissed the claim before the hearing. Issue: If the appeal is granted, should this Court decide the limitation period issue having heard submissions on the matter?

Result: Appeal allowed - it would not be appropriate in these circumstances for this Court to decide the limitation period issue. Case remitted back to Small Claims Court for hearing before another adjudicator. 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: Tanner v. Lunenburg (Town), 2012 NSSC 424 Date: 20121128 Docket: Bwt No. 406078 Registry: Bridgewater Between: Bernard Calvin Tanner Appellant v. Town of Lunenburg Respondent Judge: The Honourable Justice Peter P.

Rosinski Heard: November 27, 2012, in Bridgewater, Nova Scotia Written Decision: December 6, 2012 (Oral decision rendered on November 28, 2012) Counsel: Bernard Calvin Tanner, the Appellant, self-represented Patrick Burke, Q.C., for the Respondent By the Court : Introduction

[ 1 ] Adjudicator Tony Brown, who was to hear the trial of the claim herein, decided based on a written request from the Town to do so, that the 12-month limitation period in s. 512 of the Municipal Government Act inevitably would defeat any chance of success by Mr. Tanner in his claim against the Town for damage occasioned to the grave sites of his father, mother and brother by agents of the Town in the Town of Lunenburg public cemetery in December, 2004. Mr. Tanner appealed the Adjudicator ’ s decision to this Court.

Because the Adjudicator decided this without a hearing and without permitting the parties to make submissions and present evidence, he erred in law and denied procedural fairness to Mr. Tanner. [ 2 ] In this Appeal, the Town argued that, in spite of such errors, I should dismiss the Appeal because the deadline for Mr. Tanner to have filed his claim was, on the most generous reading of the evidence and legislation, October, 2011. He filed his claim in the Small Claims Court on July 6, 2012.

The Town argues that I have such “ inherent jurisdiction ” or from a broad reading of s. 32 of the Small Claims Act as I decided in Leighton v. Stewiacke Home Hardware , 2012 NSSC 184 , to dismiss the appeal and that I should do so in this case. Background [ 3 ] The decision under Appeal was rendered July 23, 2012, and the order associated therewith issued September 11, 2012, which read in part: ... that the Claim be dismissed as being commenced beyond the limitation period set out [section 512] in the aforesaid Municipal Government Act [ 4 ] The initial Notice of Claim filed on July 6, 2012, by Mr.

Tanner read in part: I claim from the Defendant ... $8,842.00, plus interest, costs and general damages in amount one hundred dollars ... The reason for the claim is: attached as Tanner v. Town of Lunenburg, Exhibit A. [ 5 ] Exhibit A is a two page written

summary of the “ claimant ’ s claim. ” A

summary of the allegations is as follows: 1. Mr. Tanner ’ s family bought five burial plots from the Town with the view to having them available for family members when they passed away. 2. Mr. Tanner ’ s family were buried there: a. In 1997 - his father; b. In 1999 - his brother; and c. On December 9, 2004 - his mother. 3. On December 14, 2004, the Town, through it ’ s employees or agents, wilfully destroyed/damaged the “ vaults and coffins ” of his father, brother and mother. [ 6 ] In its Defence filed July 18, 2012, the Town countered, in part, that:

1. Any action is statute barred by s. 512 of the Municipal Government Act ; 2. It is protected as well by s. 513 of the Municipal Government Act ; 3. It did not damage the vaults or caskets in question “ deliberately or wilfully or otherwise ” and discharged any of its duties with reasonable care even if some damage was caused; 4. In all respects, it puts the Plaintiff to strict proof of his claim; 5. It questions Mr. Tanner ’ s “ authority ” to pursue the claim since there is no suggestion that he is the lawful representative of the estates of his father, mother or brother; 6.

The Town pleads the provisions of the Cemeteries Protection Act , S.N.S. 1998, in particular s. 22 thereof [which I take to be an intended reference to the Cemetery and Funeral Services Act , R.S.N.S. 1989, c. 62]; [ 7 ] Adjudicator Anthony Brown, in response to the Notice of Appeal filed August 21, 2012, by Mr. Tanner, filed the requisite

Summary Report of Findings on September 11, 2012. [ 8 ] In this

Summary Report, Adjudicator Brown noted: After reading both the Notice of Claim and the Defence filed with the Court, I concluded that the proceeding was statute-barred by operation of the Municipal Government Act ... The jurisdiction of the Small Claims Court is restricted by s. 9 of the Act to matters of contract or tort. The ... Notice of Claim does not disclose a contract between the Claimant and this defendant with respect to the disinterment and neither does it disclose any duty of care from this defendant towards this Claimant [ 9 ] As noted, Mr.

Tanner filed a Notice of Appeal with this Court on August 21, 2012. [ 10 ] The Notice of Appeal is seven full-typed pages in length. It contains not only the grounds of appeal, but also a legal argument surrounding each of the alleged errors. [ 11 ] In

summary, the appeal grounds are: 1. Errors of law are alleged, that is: a. That in deciding whether the claim was statute barred by a limitation period, the Adjudicator erred in relying solely on the pleadings and not proceeding to a hearing of the claim; b. That in deciding the 12-month limitation period in s. 512 of the Municipal Govern Act operates in this case to statutorily bar the claim from proceeding otherwise.

2. Failure to follow the requirements of natural justice, that being: a. In accepting and considering the Town solicitor ’ s July 17, 2012 dated letter requesting the Adjudicator to rule on the applicability of the limitation period in s. 512 of the Municipal Government Act , the Adjudicator erred in that: i. He did not give Mr. Tanner an opportunity to present evidence and make arguments on the issue and he erred as well in not appreciating that; ii.

The quick judgment procedure in the Small Claims Court Act only applies if no Defence has been filed and that that procedure adopted by the Adjudicator was not available in this case. [ 12 ] Mr. Tanner also filed a comprehensive brief with 25 tabs on November 14, 2012. Most of the tabs are either cases decided by courts or statutes. Some of the tabs provided have factual references alluded to in the brief, i.e. photos of the disinterments, invoices, correspondence, diagrams, etc. These factual matters would normally be introduced before me on Appeal by way of affidavits as “ fresh evidence ” if at all.

As they are not in affidavit form, I must ignore them except that they do give context to the ultimate nature of the claim and the evidence available as claimed by Mr. Tanner. [ 13 ] Mr. Tanner also filed a supplementary brief on November 20, 2012. The Town filed its brief on November 14, 2012. [ 14 ] In his supplementary brief, Mr. Tanner references certain facts that he says are relevant to any limitation period and “ why he had waited 5 years and 10 months to file his appeal [sic - claim]. ” [ 15 ] He referred to those in

summary as follows: a. A November 28, 2006, letter from C. Lynne Weagle, Clerk of the Small Claims Court, who responded to his generalized written enquiry entitled “ re Limitation of Actions Act - property damage other than vehicle damage. Two years or six years. Please forward me this information with your name and title. ” To which she responded in writing: November 28, 2006 The limitation period is six years. C. Lynne Weagle Clerk of the Small Claims Court b. An October 19, 2006, letter from Mr. Tanner to the relevant Town representatives advising them of the nature of his complaint; c.

Their response letter dated December 5, 2006. [ 16 ] Mr. Tanner also filed a November 23, 2012, rebuttal brief. In it, he sought to respond to “ the new and unexpected issues that have been brought up by the Respondent [in its November 19, 2012, brief]. ” He specifically argued that the Court should reject the

Town position that in spite of a denial of hearing it should reject the appeal since it has no chance of success in any event. While I cannot consider the factual matters brought up in arguments in this Appeal, since no fresh evidence was presented, I accept that they may have been relevant had the Adjudicator proceeded to hear the claim as scheduled on October 9, 2012. Analysis Factual Background [ 17 ] There are no “ facts ” per se found by the Adjudicator because there was no hearing.

The Adjudicator was requested to rule on the applicability and effect of the 12-month limitation period contained in s. 512 of the Municipal Government Act before the hearing date. [ 18 ] The court file reveals that: a. i. The claim was filed July 6, 2012; ii. On July 11, Mr. Tanner filed a May 24, 2012, dated letter in which he had advised the Town of his intention to bring his suit; iii. The claim was served on the Town on July 11, 2012; iv. The Defence was filed July 18, 2012; v. The hearing date was set out in the claim as at October 9, 2012, at 5:00 p.m.; vi.

On July 17, 2012, counsel for the Town wrote to the Prothonotary stating in that letter [which I note was marked “ received ” by the Court on July 18, 2012]: I am filing a Defence on behalf of the Town of Lunenburg. It is submitted by the Town that Mr. Tanner has no standing [i.e. he is not the legal representative for the estates of his father, mother or brother whose vaults and coffins are alleged to have been damages], and furthermore, that the limitation period has expired. Is it possible to have the Adjudicator rule on this matter in advance so that it would not be necessary for Mr.

Tanner to come to Nova Scotia if the Adjudicator agrees that the limitation period has expired or that the claimant otherwise has no standing? [ my notations in parentheses ] This letter did purport to be copied to Mr. Tanner. b. By letter dated July 27, 2012, Mr. Tanner faxed counsel for the Town and filed with the Court on July 30, 2012 the same letter in which he stated: Please find enclosed a copy of the letter that I sent to Roxanne Perry, the Clerk of the Small Claims Court [dated July 26] and my

response to your Statement of Defence, which was sent to show my reasons as to why an adjudicator should not make a decision on the merit of my claim, or determine if I am statute barred by the Limitation of Actions Act or any other statutes of Nova Scotia, without first reading my Response to the Town of Lunenburg’s Defence first. [ my notations in parentheses) He also stated in his letter: Therefore I do not see how you were able to convince an adjudicator in such a short period of time to grant you an order when I had only received the original copy of your Defence by registered mail a few days ago. c.

In his July 26, 2012 letter, stamped received July 27 at the Court, Mr. Tanner stated: As discussed in our conversation of this afternoon I have enclosed my reasons as to why an adjudicator should not make a decision on the merit of my claim, or determine if I am statute barred ... without reading my Response to the Town of Lunenburg’s Defence first ... I did not think I would need to worry a deadline as your Assistant had informed me yesterday that regardless whether Patrick A. Burke, Q.C., had written a letter asking for my claim to be dismissed on July 17, 2012, it would be heard on October 9, 2012.

Despite the fact than an order may have been drawn up, it would be greatly appreciated if you could ask the adjudicator to put a stop on the order until he has read my legal assistant’s legal arguments, facts and review the evidence. [ 19 ] As noted earlier, the Adjudicator signed the order dismissing Mr. Tanner ’ s claim on July 23, 2012. [ 20 ] When asked to reconsider, he had court staff communicate to Mr.

Tanner that he was “ functus officio ” or that he no longer had jurisdiction to act over the case and that an appeal would be required to challenge or change his decision of July 23, 2012. [ 21 ] Thus, from the court file one can conclude that: i. After the claim and later Defence were filed, counsel for the Town requested that the Adjudicator dismiss the claim based on its position that Mr. Tanner had no standing to make such claims and/or the claim was statute barred by s. 512 of the Municipal Government Act ; ii. That the letter from Mr. Burke dated July 17 was received by the Court on July 18.

There is no evidence when it was received by Mr. Tanner and it does not purport to be faxed so I can only infer that it was sent by either regular or registered mail as alluded to by Mr. Tanner to Mr. Tanner in Calgary, Alberta, and I also infer that he had no opportunity to reply to it before the Adjudicator made his decision; iii. Without hearing from Mr. Tanner, either by way of evidence or arguments on the “ standing ” or limitation of actions issue on July 23, the Adjudicator decided the issue. Why there must be an order for a new hearing

[ 22 ] The Adjudicator was at least well intentioned it would seem in his reasoning process - in his

Summary of Findings he stated: The Claimant is a resident of Calgary and it would in my opinion be an unnecessary expense for him to have to travel to Nova Scotia for a hearing on this matter only to be informed that his claim was out of time.

Conversely, I do not consider the fact that the Claimant resides out of province constitutes a valid reason for allowing a claim otherwise barred from proceeding after the limitation had expired ... ... the most careful perusal of the Notice of Claim does not disclose a contract between this Claimant and this Defendant ... and neither does it disclose any duty of care from this Defendant towards this Claimant. For all these reasons the claim was dismissed. [ 23 ] Nevertheless, I note: 1.

He breached the duty of procedural fairness in not allowing the claimant an opportunity to present evidence and arguments at a hearing - see, for example, Justice Bryson ’ s comments as cited by me in para. 84 in Leighton v. Stewiacke Home Hardware , 2012 NSSC 184 ; and 2.

There is no express legal authority that would permit an adjudicator to peremptorily dismiss a claim in such circumstances in any event - though quick judgments on application are available where no Defence is filed in time - see Leighton , paras. 32-54 ; no similar dismissing of a claim based only on the pleadings is permitted under the Small Claims Court Act as there is no equivalent to, nor are applicable to that Court, Civil Procedure Rule 12 (determination of a question of law) or Civil Procedure Rule 13.03 (summary judgment on pleadings). [ 24 ] An Appeal may be granted by this Court if it finds an “ error of law ” or “ failure to follow the requirements of natural justice ” per s. 32 of the Small Claims Court Act . [ 25 ] In this case, both grounds have been demonstrated by the Appellant, Mr.

Tanner. [ 26 ] The Town relies on my decision in Leighton v. Stewiacke Home Hardware , 2012 NSSC 184 , paras. 20-28 , to argue that if I can use the powers implicitly available to the Nova Scotia Supreme Court on Appeal from s. 32 of the Small Claims Court Act or in combination with the Court ’ s “ inherent jurisdiction ” arising from the common law to effect justice where no other means exist to do so, to quash a decision of an adjudicator made without jurisdiction, as I did in Leighton , then I should also have the jurisdiction, in this case, to refuse to allow Mr.

Tanner ’ s otherwise appropriate appeal based on the lack of procedural fairness, because a trial is unnecessary as it is inevitable that Mr. Tanner ’ s claim would be dismissed as being started after the deadline in the Municipal Government Act passed even allowing for the most generous possible

interpretation of the law and facts in this case. [ 27 ] I note that Leighton is distinguishable on its facts, there having been a second hearing held by the adjudicator without jurisdiction as he misconceived the nature of the original hearing.

I acknowledge, however, that arguably the case could provide the basis for my jurisdiction to conclude here that a successful ground of appeal exists (i.e. lack of opportunity to have a hearing) yet still dismiss the Appeal. [ 28 ] Nevertheless, as I said in Leighton : “ Courts should err on the side of ensuring liberal access to justice [and] they must assess on a case by case basis when it is just and equitable to use their inherent jurisdiction - para. 26. [ 29 ] In the case at bar, the Town relies on two principal arguments to argue that the dismissal of Mr.

Tanner ’ s claim is inevitable, and therefore the Appeal should be dismissed: i. That he has no “ standing ” to bring the claim - to this I note at this stage somewhat superficially:

a. That the Small Claims Court Act intends informality and, if required at a trial, generally adjudicators would be inclined to amend the name of the claimant party to the description that would formally permit the claimant to proceed with the claim. Moreover, a reading of

An Act respecting a Public Cemetery for the Town of Lunenburg , S.N.S. 25-26, Geo. V. (1935), c. 68, makes it clear that the Town has control of the Cemetery including the “ sale of lots ” . This is buttressed by the Town of Lunenburg By Law No. 7, Respecting the Management of the Lunenburg/Hill Crest Cemetery, which states in

part in its

definitions: “ grave ” means a place for the permanent placement of human remains; “ purchaser ” includes the heirs, administrators, successors and assigns of the purchaser and agent of them. Mr. Tanner would appear to be a likely heir and/or agent of a “ purchaser ” (e.g. Roseville Tanner) and so would appear to be a proper claimant on those bases alone. Ultimately, that issue requires a more fact specific examination by a court to assess the validity of the Town ’ s assertion that Mr. Tanner has no standing. It therefore requires a trial or hearing. ii.

That the specific s. 512 of the Municipal Government Act 12-month limitation period overrides any general 6-year limitation period in the Limitations of Actions Act otherwise applicable to contract breaches or negligence claims and that this Court “ can make a determination on that issue without having to make factual findings. ” [ 30 ] Firstly, in relation to that position of the Town, I should observe that it would seem rather inequitable for the Town to insist on the s. 512 Municipal Government Act limitation period of 12 months even with the add-ons of 4 years to defend a claim against it where: a.

The alleged damages arose December 14, 2004, and the complaint was brought to the attention of the Town ’ s representatives by Roseville Tanner (possibly as early as January 5, 2005). The Town Engineer responded by letter February 28, 2005; b. Mr. Bernard Calvin Tanner made significant efforts to have the three relevant grave sites disinterred and reinterred with the necessary consent of the Town in September, 2006; c. Only after this procedure was the claim perhaps “ discoverable ” ; d. Mr.

Tanner received from the Clerk of this Court in Bridgewater on November 20, 2006, a confirmation that for such claims the Limitation of Actions Act period is six years (though perhaps, in fairness to the Clerk, she was not entirely aware of the nature of the claim as being against a municipality); e. On October 19, 2006, Mr. Tanner made (see tab 27 of his November 19, 2012, brief) an offer to settle the matter for the costs of disinterrment and reinterrment; and f. On December 5, 2006, the Town replied that it did not consider itself liable as also confirmed in its December 14, 2006, letter.

Even thereafter, it appears that the Town may have refused to disclose the names of the grave diggers involved in the December 9, 2004, burial of Mr. Tanner ’ s mother (see, for example, tab 3 of the November 14, 2012, brief and tab 29 of the November 19, 2012, brief). Those persons may be potential parties as well as witnesses to this matter. Thus, until December 14, 2006, Mr. Tanner was still approaching the Town in a manner that it was aware he considered them to be liable

for the damage to the grave sites and vaults. Nothing more appears to have happened on the pleadings, if you will, according to the assertions and the briefs that I have until May, 2012. He was however clearly not aware of the 12-month limitation period in s. 512 of the Municipal Government Act and understandably perhaps thought that there was a 6-year limitation period. [ 31 ] Secondly, as a matter of law, I should not accept the Town ’ s argument to dismiss this claim at this stage in these proceedings (see Halifax (Regional Municipality) v. Nicholson , 2009 NSCA 109 ). [ 32 ] In that case, HRM appealed the dismissal of its application for

summary judgment. Mr. Nicholson had sued HRM outside of the 12-month s. 512 Municipal Government Act limitation period. Mr. Nicholson sought and was granted his application to have the limitation period defence struck out. [ 33 ] On the facts in that case, the Appeal Court found that the trial judge had, in essence, used the correct test in assessing whether to extend the limitation period, but erred in his application of the legal test to the facts. [ 34 ] Thus, the Nova Scotia Court of Appeal overturned the trial judge ’ s decision to dismiss HRM ’ s

summary judgment application based on the limitation period defence, and allowed Mr. Nicholson ’ s application to strike out the limitation period defence. [ 35 ] At para. 34, the Nova Scotia Court of Appeal then went on itself based on the record from the hearing to consider whether

summary judgment should be granted to HRM. [ 36 ] Notably, Justice Hamilton stated: [34] ... If a plaintiff ... is unsuccessful in an application under s. 3(2) of the Act [to extend the limitation period time], it is by no means automatic that the court will necessarily strike the Statement of Claim or otherwise grant judgment in favour of the Defendant. See Layes v. Chisholm , [1997] N.S.J. 190 [C.A.] . Absent an application by the plaintiff, the defence simply is allowed to stand and, like many defences, be determined at trial. ... [ my notation in parenthesis] [ 37 ] To similar effect, see K.A.S. v.

Reddick , [1997] N.S.J. No. 262 , at paras. 11-12 , also a Court of Appeal decision. [ 38 ] Thirdly, the authority to do as the Town requests is very uncertain and it would be an extraordinary exercise of discretion by me to dismiss the appeal in spite of Mr. Tanner ’ s having identified two serious errors in the Adjudicator ’ s decision. Conclusion [ 39 ] I must be guided by what is just and equitable - what would do justice as between the parties. What is the appropriate order to make having determined that the Adjudicator made fundamental mistakes in his decision. Order a hearing or dismiss Mr.

Tanner ’ s claim?

[ 40 ] To my mind, it would clearly be contrary to the interests of justice in this case for me to dismiss the claim by Mr. Tanner by dismissing what, in effect, are good grounds of appeal raised by him. [ 41 ] For all these reasons, I find the Adjudicator committed reversible errors which require that I order a new hearing before a different Adjudicator on an expedited basis at a time convenient to Mr. Tanner who is resident usually in Calgary, Alberta. J.