Urquhart v. MacIsaac, 2017 NSSC 313

SUPREME COURT OF Nova Scotia Citation: Urquhart v. MacIsaac , 2017 NSSC 313 Date: 20171206 Docket: Ant No. 421788 Registry: Antigonish Between: Richard Urquhart and Kerry Urquhart Plaintiffs v. Daniel MacIsaac, DJMI Legal Services Limited and Ronald MacIsaac Defendants Judge: The Honourable Justice James L. Chipman Heard: October 23, 24, 25, 26, 27 and 31, 2017, in Antigonish, Nova Scotia Counsel: Bruce T. MacIntosh, Q.C. and Kyle Power, for the Plaintiffs Augustus M. Richardson, Q.C. for the Defendants, Daniel J. MacIsaac and DJMI Legal Services Limited Dennis J. James, Q.C. and Kimberley D.

Pochini, for the Defendant, Ronald MacIsaac By the Court: Overview [ 1 ] In early 2010 Richard Urquhart and Ronald MacIsaac shook hands on a deal. Their agreement meant the MacIsaacs would sell their 11 acre farm property to the Urquharts for $150,000. Both parties hired lawyer Daniel J. MacIsaac to represent them on the property conveyance. [ 2 ] The closing took place in early May, 2010. For the next two and a half years there were no issues.

This changed in late 2012 when the Urquharts learned that Ronald MacIsaac’s son’s company was asserting ownership over critical parts of the farm property. [ 3 ] Lawyers were retained and ownership of portions of the property remained in issue. In November, 2013 the Plaintiffs filed the within lawsuit. The Action was filed under Rule 57 (claims under $100,000). [ 4 ] Daniel J. MacIsaac and his corporation, DJMI Legal Services Limited, filed their Defence as did Ronald and (then Defendant) June MacIsaac. Ronald and June MacIsaac also crossclaimed against Daniel J.

MacIsaac, whose Defence to Crossclaim was filed in mid February, 2014, closing the pleadings. [ 5 ] On the eve of trial June MacIsaac became very ill and the parties agreed to an accommodation. Ms. MacIsaac would be dropped as a Defendant and would not give viva voce evidence on the understanding that her discovery transcript would be in evidence (as Exhibit 1). [ 6 ] Rule 57 limits pre-trial and trial procedures in a defended action so that it will be more economical.

Although this trial consumed five days of evidence and one day of oral argument and involved lengthy briefs and (now) a lengthy decision, I believe the spirit of the Rule was followed. In short, what may have been a much more protracted trial was accomplished relatively swiftly, within four years of the commencement of the lawsuit. [ 7 ] Given that there are two parties and three witnesses who have the MacIsaac surname, throughout the decision I have referred to them as follows:

• Daniel J. MacIsaac – “Danny” • Ronald MacIsaac – “Ron” • June MacIsaac – “June” • Boyd MacIsaac – “Boyd” • Theresa MacIsaac – “Theresa” Evidence Received [ 8 ] At trial, 25 exhibits were entered by consent. The Plaintiffs called themselves and real estate agent, Kim Silver. The Defendants, Daniel J. MacIsaac and DJMI Legal Services Limited called Danny MacIsaac and Anne Marie Kavanagh. The Defendant, Ron MacIsaac called himself, Boyd and Theresa MacIsaac. Background Richard Urquhart [ 9 ] Mr. Urquhart (d.o.b. November 18, 1965) and his family reside in Buckley, North Wales, United Kingdom. Mr.

Urquhart grew up on a farm in Wales and graduated from high school. He attended an agriculture college, achieving a certificate in agricultural engineering. [ 10 ] While in Wales, Mr. Urquhart worked as a supervising project manager. He started a company with his wife in the late 1990’s which grew to 20 employees. Mr. Urquhart’s work involved pricing contracts. [ 11 ] Mr. Urquhart, his wife and three sons were living in the U.K. at the time of the 2008 global economic slow down. This prompted Mr. Urquhart and his wife to consider emigrating to Canada.

Ultimately, they narrowed their choice to Antigonish County, Nova Scotia. Mr. Urquhart was hired by Boyd MacIsaac to work at R.J. MacIsaac Construction Limited (the “Company”). He began working for the Company in March, 2009 and soon thereafter, his wife and two youngest sons moved to be with him in Nova Scotia. [ 12 ] The family initially rented a mini home in the Lower South River area of Antigonish County. Mr. Urquhart became aware of issues with the well water in the area. In particular, he noted water could be brackish and “hard”.

Additionally, he formed the view that, “wells tend to run dry in the hot summer months”. [ 13 ] Mr. Urquhart initially enjoyed his work as project manager for the Company. He got along with Boyd MacIsaac and Mr. MacIsaac completed a favourable labour market opinion form for him which was submitted as part of the process to become a Canadian citizen. Mr. Urquhart described it as, “a green light for me [and my family] to come to Canada”. In particular, Mr. Urquhart qualified for the Nova Scotia Immigrant Nominee Program. [ 14 ] By the summer of 2011, Mr.

Urquhart’s relationship with Boyd MacIsaac soured and in August of that year he was terminated from the Company. This left the Urquharts in a compromised financial position as they had little income and their savings were tied up in the property they purchased at 3933 West South River Road, Dunmore, Antigonish County, Nova Scotia (the “Property”). [ 15 ] The Urquharts owned one home during their lifetime in Wales. Mr. Urquhart described buying the home as, “pretty similar to the Canadian way”. In describing the transaction, the only real difference pertained to the involvement of lawyers.

In his words, “in Wales, we don’t get involved in the paperwork aspect”. On cross-examination he added, “we would instruct the solicitor, and he would sort out all the contracts”. He only had one meeting with the solicitor on the day of the sale. Mr. Urquhart very much relied on his U.K. solicitor for what was a routine transaction. [ 16 ] Mr. Urquhart testified that it took some time for the family’s North Wales home to sell. On closing, he was left with a lump sum which would be put to use to purchase property in the Antigonish area. Kerry Urquhart [ 17 ] Ms. Urquhart is 45 years old.

Nearly nine years ago, she and her husband decided on the “adventure” of a new life in Canada. On May 27, 2009, Ms. Urquhart and two of their sons joined Richard Urquhart in Antigonish County. [ 18 ] Like her husband, Ms. Urquhart was born and raised in Wales. She has high school education and college certificates in hairdressing, beauty and business. Ms. Urquhart worked as a career advisor in the United Kingdom before moving to Canada. Upon arriving in Nova Scotia, she volunteered with the Canadian Red Cross and had a part-time job with the Career Resource Centre in Antigonish.

She then secured a full-time job for 18 months assisting newcomers settling in Canada. The job ceased when government funding ended. The Handshake Deal to Buy the Property Richard Urquhart [ 19 ] In the late summer of 2009 Mr. Urquhart spoke with Boyd MacIsaac, inquiring as to whether there might be hobby type farms for sale in the area. Mr. MacIsaac allowed that his parents were building a retirement home and thus looking to sell their farm. Boyd suggested that he go see his father, Ron MacIsaac, regarding his hobby farm. Mr.

Urquhart contacted Ron MacIsaac in November or December 2009 and then attended at the Property. Ron MacIsaac’s niece had been given first option on the Property but when this fell through, Mr. Urquhart met with Ron and June MacIsaac in their kitchen sometime in January, 2010.

[ 20 ] Mr. Urquhart recalled introducing himself and, “they welcomed me with open arms, they were lovely people”. The meeting took place during the evening and he was shown around the inside of the house. Ron MacIsaac showed him a plan which depicted the farm house, a small garage, a barn and land compromising approximately 11 acres. Mr. MacIsaac took a pencil and, “outlined what would be mine”. Mr. Urquhart confirmed this drawing to be Exhibit 2, tab 2, an 8”x10” plan of the Property with Ron MacIsaac’s pencil markings. [ 21 ] After Mr.

Urquhart left the MacIsaac’s home, it was agreed that he would return on the weekend to take a look at the Property during the daylight. On the following Saturday, he returned with his wife. Ron MacIsaac offered to take Mr. Urquhart in his pick-up truck to “go have a look” at the outside area. After initially showing Mr. Urquhart his nearby Christmas tree lot, Mr. MacIsaac drove back to the Property and the two men did a partial walkabout. Since the ground was wet and muddy they did not cover all of the area; however, Mr. Urquhart was given a general idea of the boundaries. [ 22 ] Mr.

Urquhart was shown a small lot to the east of the barn, referred to as the garden lot. As Mr. Urquhart and Ron MacIsaac did not have the plan with them during their walk, Mr. Urquhart asked Mr. MacIsaac if the garden lot was included in the Property. Mr. Urquhart said that he would like to have the area as it would be suitable as a small paddock for young and sick animals. According to Mr.

Urquhart, Ron MacIsaac said the garden lot was not for sale on account of two reasons: • his wife had an asparagus patch there which she wanted to keep • Boyd MacIsaac (“at some point”) wanted to drill a well in the area of the garden lot [ 23 ] Mr. Urquhart advised he was “a bit disappointed” the garden lot was not for sale. Ron MacIsaac replied that it would not be a problem because as owner of the garden lot, he would permit Mr. Urquhart to use it as part of the sale of the Property. [ 24 ] There was further discussion about the driveway on the Property. Mr.

Urquhart was aware of Company employees driving up the roadway during early morning hours. Ron MacIsaac said this did not bother him and his wife but agreed it would be best to stop Company employees from using the driveway. Mr. MacIsaac suggested since Mr. Urquhart was the project manager, he should tell the employees not to use the driveway. In any event, Mr. Urquhart said that he and Ron MacIsaac agreed that the driveway would be shared between themselves. [ 25 ] Mr. Urquhart said, when referring to ownership of the driveway, “we’ll split it – we’ll both own it”.

He elaborated, “Ron in discussions said he intended to give me the driveway to the barn and he would have access for June and at some point allow Boyd to use it. Ron said he would speak to his lawyer and get it arranged”. [ 26 ] Mr. Urquhart needed the driveway to get access to the barn. He expressed this concern and was reassured as Ron stated, “we’ll make sure the road is divided so that June and I can get to the asparagus patch and you can use it too”. It was Mr. Urquhart’s understanding that each would have “some form of ownership over the road”. [ 27 ] On cross-examination, Mr.

Urquhart was reminded of his May 11, 2015, discovery evidence where he acknowledged the driveway would also be shared with Boyd MacIsaac as he would need access if he was going to drill his well. [ 28 ] Mr. Urquhart said that when they went on the walkabout, the men stood by the barn and looked north. From this vantage point, it was apparent that there was some Company equipment on the Property, so he spoke to Ron about this. He saw what looked to be old scrap iron and Ron told Mr. Urquhart that he would get Boyd to clean it up. [ 29 ] After touring the Property, Mr.

Urquhart walked around the house with his wife and they decided they wanted to purchase the Property. Accordingly, Mr. Urquhart asked Ron MacIsaac his price and was told $150,000. Mr. Urquhart had a “cheaper price in mind”, but “Ron stuck to his guns” and he ultimately told Ron (referring to the $150,000) that it was a “fair offer”. The men shook hands on the deal and agreed to close when the MacIsaacs were ready to move into their new premises. [ 30 ] Mr. Urquhart agreed the handshake deal was for $150,000 on the condition that Ron MacIsaac would make certain repairs to the house.

He anticipated that the encroaching equipment would be removed before the closing. The Urquharts would be entitled to use the garden lot for as long as they owned the farm and would have ownership of the driveway with Ron and June MacIsaac. Mr. Urquhart gave no thought as to what would become of the driveway if Mr. MacIsaac sold the garden lot. [ 31 ] Soon after the agreement was reached, Mr. Urquhart recalled Boyd MacIsaac asking how things went. Mr. Urquhart responded and asked about a recommendation for a lawyer.

Boyd MacIsaac suggested Danny MacIsaac whom he characterised as being “fair, he’s good on his price”. [ 32 ] On cross-examination Mr. Urquhart agreed he would be getting lot 6 and part of lot 4BC shown on Exhibit 2, tab 2. He agreed he was not getting that portion of lot 4BC to the right of the barn. Mr. Urquhart said Ron MacIsaac left him with the impression that Boyd MacIsaac wanted to get water for the nearby Company property. Nothing was said by Ron MacIsaac about the garden lot being sold to anyone else. Mr.

Urquhart said that Ron MacIsaac stated, “you can use it as your own for as long as you want”. [ 33 ] Mr. Urquhart denied that Ron MacIsaac told him that he was going to get a new survey. On cross-examination, Mr. Urquhart was taken to his discovery to show that he understood Ron was going to have a surveyor divide the property. Mr. Urquhart agreed that he did not ask Ron MacIsaac to provide him with a copy of the new survey. He explained that he was relying on Ron MacIsaac to carry out their agreement. [ 34 ] Mr. Urquhart agreed that nothing was put in writing and that he relied on Ron.

He stated on cross-examination, “I expected Ron to get all the legal aspects sorted out”. Mr. Urquhart knew at the time of the purchase that Ron was selling other pieces of his land. [ 35 ] On cross-examination Mr. Urquhart agreed that he did not provide any instructions to Danny MacIsaac regarding the various aspects of the agreement. He was relying on Ron MacIsaac to convey the information to Danny MacIsaac and he did not check to

determine if all the terms were relayed by Ron MacIsaac to Danny MacIsaac. Mr. Urquhart said he thought he would receive an Agreement of Purchase and Sale (“APS”) when he attended at Danny MacIsaac’s office. Ron MacIsaac [ 36 ] Ron MacIsaac is 87 years of age. He is married to June MacIsaac and the couple had ten children. The Property is part of land that Ron MacIsaac has owned since 1952. [ 37 ] With the aid of Exhibit 13, the survey plan, Ron MacIsaac explained the background leading to the subdivision.

His son, Boyd MacIsaac, had purchased the Company and, “we decided we better get a survey of the land and assets going to Boyd”. [ 38 ] By 2010, the MacIsaacs decided to sell; “June and I were getting older and wanted to build a smaller place on one level”. They sold parts of their land to neighbours and, ultimately, the homestead property to the Urquharts. There was a well on the land which was spring fed and offered an “ample supply of water”. [ 39 ] Ron MacIsaac recalled Boyd had built a log home across the road from the homestead.

He said Boyd put a waterline from his house to the well along with a pump to create his water supply. He estimated that Boyd had used the well for about 20 years and there were never any issues. [ 40 ] Ron MacIsaac traced the background leading to the sale of the Property to the Urquharts. He recalled Richard Urquhart coming to see him and that they both drove and walked around “some of what might be for sale”. Mr. MacIsaac described this as the house, barn and about ten acres of land. He formed the impression that Mr. Urquhart was initially not very eager to have the barn included.

As for the garden lot, when they did their walkabout, “I told Richard he was welcome to use the garden lot”. He said there was never any discussion of selling the garden lot to the Urquharts or anyone else, “part of the garden lot was where June grew her asparagus, she wanted to keep it and they were aware of that”. [ 41 ] Ron MacIsaac was taken to Exhibit 2, tab 7, the February 17, 2010, Deed wherein he sold the garden lot to the Company. He agreed that he had discussed this with a surveyor, Stewart MacPhee.

He said the Deed was prepared by Danny MacIsaac and confirmed that Danny MacIsaac had always done his legal work. Once he knew he was selling the Property to the Urquharts, he asked Danny MacIsaac to draw up the documents. [ 42 ] Ron MacIsaac was shown Exhibit 2, tab 2, his pencil drawn lines on the plan of the Property. He said he and Richard Urquhart agreed to a price of $150,000. Mr.

MacIsaac added there was a roadway that went up to the shop and barn and, “it was a shared driveway for the Company to access the shop, the Urquharts’ to access the barn and for us to use the garden lot”. [ 43 ] Ron MacIsaac did not think any house repairs were effected prior to the sale. As for the Company’s equipment encroaching on the Property, Ron MacIsaac said Mr. Urquhart complained about this “long after the sale”. [ 44 ] Later on, after the handshake deal, Ron MacIsaac said Boyd approached him to inquire of Richard as to whether he would accept $5,000 for the land where the equipment was.

When he approached Mr. Urquhart, “Richard said he was not willing to do any favours for Boyd”. [ 45 ] Ron MacIsaac agreed when they made their handshake deal, there was no discussion about the water easement for the Company. He agreed there were water problems in some areas of the Dunmore Road. [ 46 ] On cross-examination, Ron MacIsaac agreed that it was Boyd who wanted the garden lot along with a water line for the Company shop. He agreed this was not discussed with Richard Urquhart prior to the closing. [ 47 ] When he signed the Deed, Ron MacIsaac said he gave no thought to the driveway.

He assumed it was shared. On further questioning, he clarified that the driveway could be used by him and his wife as well as the Company. He agreed he said that the early morning driving down the roadway would stop and that the Company could use the other end of the driveway. At this point, Ron MacIsaac’s memory was refreshed by way of his May 13, 2013, discovery evidence. He agreed he gave testimony that the driveway would be part of the “package” sold to the Urquharts. He allowed that he never understood how the driveway got deeded to the Company.

He agreed that when he signed the garden lot Deed he did not think it had anything to do with the driveway. Furthermore, he said that Danny MacIsaac and Boyd did not inform him otherwise. Ron MacIsaac said the first thing he knew about the driveway not being owned by the Urquharts was when Boyd put a steel beam across the driveway. [ 48 ] Ron MacIsaac denied promising Boyd the driveway and barn prior to closing with the Urquhart’s, “I certainly don’t remember that”. [ 49 ] He said he was accustomed to making handshake deals and had proceeded without agreements of purchase and sale in the past.

He said he thought the survey would reflect what he agreed to sell Mr. Urquhart. Mr. MacIsaac expected Danny MacIsaac to work off the survey. In conversations with Danny MacIsaac and Ms. Kavanagh, Ron MacIsaac said he would not have referred to the Property as lot 6 but rather, the homestead property. [ 50 ] Ron MacIsaac told Richard Urquhart that Danny did his legal work and that it might be a good idea for Danny MacIsaac to do both sides of the transaction, but that it would be up to him.

The Notion of an Earlier Agreement Boyd MacIsaac [ 51 ] Boyd MacIsaac and his wife, Theresa, presently have two homes; one at 28 Acadia Street, Antigonish, and the other at 93 Loch Harbour Road, Little Lake, Antigonish County. Following the sale of their house on the Dunmore Road in 2011, the couple moved into

their Acadia Street property. [ 52 ] Mr. MacIsaac is the owner/operator of the Company. He purchased the Company from his father in 1996. The Company is involved in various aspects of construction, specializing in marine construction. [ 53 ] Boyd MacIsaac told of a meeting with his father in fall of 2009. He said that when they met, he understood Richard Urquhart was interested in buying the Property but that his meeting with his father was before their handshake. According to Boyd MacIsaac on the basis of their fall, 2009 meeting, he and his father agreed that the back lot would be conveyed to Boyd.

He said his father’s price was $5,000 and he agreed to this. Accordingly, he later became annoyed with his father at the back lot having been conveyed to the Urquharts as, “I had understood we owned it”. [ 54 ] Boyd MacIsaac added that the garden lot was part of the negotiation with his father in the fall of 2009. He elaborated, “Dad came with a set of plans to my door, his intention was to include the garden lot, the driveway and the back lot for $5,000”. [ 55 ] Cross-examined by Mr.

Richardson, he said that during the meeting with his father, “I entered into an agreement with Dad regarding the garden lot and back lot. The line was a marked fence and Dad agreed to sell the two parcels”. [ 56 ] Boyd MacIsaac referred to a February 17, 2010, “walk about” with Richard Urquhart. He described this as an “information session of what I had done, I told him the property had been purchased and the lines. I told him and he agreed on what I was doing, that I had to own access into our yard”. Mr. MacIsaac estimated that the walkabout took about a half hour.

Following this the two took a drive in his truck, “I told Richard he was welcome to use the driveway”. He said the Urquharts used the driveway and it was “quite a bit later when I stopped them from using it”. Boyd MacIsaac also said that he, “allowed Richard to use part of the lot for a garden”. [ 57 ] On cross-examination, it was put to Boyd MacIsaac that he was upset that his father sold the back lot to the Urquharts. Mr.

MacIsaac denied this, saying it was “not correct, I was shocked that an error had been made but not upset…I was surprised that a professional surveyor would make an error”. [ 58 ] It was suggested that he became aware of the handshake deal back around the time it was made. Boyd MacIsaac denied this stating, “I stayed out of it, I was not around a lot”. Mr. MacIsaac could not say how he found out about the deal but when he did, his response was, “Dad, what’s going on?”. [ 59 ] Mr.

MacIsaac said that when he found out that “we no longer owned the back lot, I went to my site supervisor to open up discussions with Richard”. Mr. MacIsaac said that he learned Mr. Urquhart was not interested in doing him “any favours” by conveying the back lot to his Company. [ 60 ] Boyd MacIsaac said that when he acquired the garden lot, he did not know his father had a deal with Mr. Urquhart. He added that his contact with Danny MacIsaac was over the water easement.

He said he had nothing to do with the driveway but that, “Dad took it to Danny MacIsaac”, adding, “when I took Richard by the hand and explained the deal I made with my father, he knew he was going to get a barn without a driveway. He had no adverse reaction to that, he accepted it all”. The Parties Dealings with DJMI Legal Services Limited Ron MacIsaac [ 61 ] Ron MacIsaac said that he and June went into Danny MacIsaac’s office on April 28, 2010.

He thought that Danny MacIsaac was in his office but, “I don’t think he came out”. [ 62 ] Ron MacIsaac said that neither Danny MacIsaac or Anne Marie Kavanagh “ever went through and explained” the conflict of interest Authorization. Ron MacIsaac said that he signed a number of papers with “sticky tabs where to sign”. He agreed there was no discussion of the substance of anything that he and June signed. He added that he was not shown a plan of survey by Danny MacIsaac or Ms.

Kavanagh. [ 63 ] Asked whether on a disagreement, Danny MacIsaac would have to stop working for both sides, Ron MacIsaac responded, “I never really gave that much thought. I just sent the plan, I didn’t specifically tell Anne Marie the roadway was to be shared”. [ 64 ] Ron MacIsaac said that Boyd wanted to have access to the water supply for his Company shop; the request had nothing to do with his house. Mr. MacIsaac did not ask Danny to prepare the water easement but “Boyd must have”. He recalled meeting with Ms.

Kavanagh to sign the property closing documents in Danny MacIsaac’s office. [ 65 ] On cross-examination, Ron MacIsaac agreed that Danny MacIsaac was familiar with the property. He estimated that Danny had attended at the property three or four times. He said that he signed all of the documents in the presence of Ms. Kavanagh and that Danny MacIsaac was not present. Ron MacIsaac said that he never spoke with Danny MacIsaac about the garden lot and that Boyd must have requested this Deed. In describing the office, he said, “it was cluttered up a bit”.

On cross-examination (referring to the water easement), “June and I didn’t come up with the idea. Anne Marie called and said, ‘you need to sign the water easement for Boyd’”. Richard Urquhart [ 66 ] After the handshake deal Mr. Urquhart eventually called Mr. MacIsaac’s office and spoke with Anne Marie Kavanagh. He recalled a brief conversation whereby Ms. Kavanagh said, “Richard, I’ve been waiting for your call, you’re buying Ron’s place”. According to Mr. Urquhart, Ms. Kavanagh did not ask about their agreement.

Further, nothing was said about a survey, an inspection, plot plan, location certificate, APS, or disclosure statement. Mr. Urquhart recalled Ms. Kavanagh commented on his accent and obtained the spelling of his surname and enquired regarding the mortgage financing with Bergengren Credit Union (“BCU”).

[ 67 ] The Urquharts had no further communication with Ms. Kavanagh or Danny MacIsaac until the closing date of May 10, 2010. When asked about their expectations of Danny MacIsaac, Mr. Urquhart responded, “we imagined Mr. MacIsaac would be working in the background doing whatever he needed to do to get the paperwork”. [ 68 ] Mr. Urquhart was asked how he found out about the May 10, 2010 closing date. He received a call but the proposed closing date was during a time that he was away, so it was agreed it would take place on May 10.

The purchase price was confirmed with $30,000 from the Urquharts’ savings and $120,000 through their BCU mortgage. The Urquharts selected a ten year amortization as they were committed to paying down on the Property as soon as possible. [ 69 ] Mr. Urquhart and his wife arrived at Danny MacIsaac’s office about five minutes before their appointment time on May 10, 2010. While they were waiting, Boyd MacIsaac arrived at the office, “with a big folder under his arm”. According to Mr. Urquhart the three exchanged pleasantries and then Boyd MacIsaac went into Danny MacIsaac’s office, ahead of the Urquharts.

After perhaps seven minutes, Mr. Urquhart said Boyd MacIsaac emerged, asking if the Urquharts were excited about buying the Property. After a brief conversation with Boyd MacIsaac, Mr. Urquhart recalls Ms. Kavanagh showing him and his wife into her office. Mr. Urquhart described Ms. Kavanagh’s office as a small work space with, “mounds of files and paperwork everywhere, beside and on Anne Marie’s desk”. He continued, “Anne Marie was back behind her desk, there were no chairs and we were standing on the other side of the desk. She said, ‘Okay, here’s your paperwork, sign here’”. Ms.

Kavanagh presented the couple with a stack of papers with various “sign here” tabs affixed to certain of the pages. “She was whipping through the pages in files and I asked if I could at least read them through before I signed”. Ms. Kavanagh had no objection to this request. [ 70 ] Mr. Urquhart went through the papers and, “as I got to the back I saw this well easement, I noticed water so I said I am going to read this in-depth”. He inquired of Ms. Kavanagh, “what’s this?” and she responded, “a well easement”.

She explained that Ron MacIsaac had signed this over to Boyd and Theresa MacIsaac so they would be able to get water. Mr. Urquhart said he was unaware of this and that it was, “not on”. He said he found this development, “really concerning” and told Ms. Kavanagh, “I’m not happy with this”. At this point, Mr. Urquhart asked to see Danny MacIsaac and Ms. Kavanagh went to get him. Shortly thereafter, Danny MacIsaac appeared, asking the couple, “so, what’s the problem?”. Mr. Urquhart expressed concern about the well easement, especially given his intention to run a farm with animals.

Danny MacIsaac responded, “there’s no problem because there is all kinds of water in that well”. Mr. Urquhart again expressed his concerns, “I was alarmed” and Mr. Danny MacIsaac responded with, “look, I’ve told you” and “he spun on his heels and was gone”. On cross-examination, he described this as “a short shrift answer”. When he was with Danny MacIsaac, he said he was given no “real opportunity to ask questions”. [ 71 ] On cross-examination it was put to Mr. Urquhart that he could not have regarded the water easement as a surprise because he knew that Boyd and Theresa MacIsaac were drawing water from the well.

Mr. Urquhart emphatically denied this, maintaining at no time did he have a discussion with either Theresa or Boyd MacIsaac about the well water. He said he was shocked about the water easement because Ron MacIsaac had said nothing about it when they made their handshake deal. [ 72 ] Mr. Urquhart said that after Danny MacIsaac left, Ms., Kavanagh was, “very quiet, there was a bit of an atmosphere in the room”. [ 73 ] Asked whether Danny MacIsaac provided any legal advice during their brief encounter, Mr. Urquhart replied, “none whatsoever”. Questioned about the notion that Mr.

MacIsaac may have been present earlier when Ms. Kavanagh presented the documents, Mr. Urquhart replied, “that is a product of pure fantasy”. [ 74 ] Mr. Urquhart said that he and his wife were not shown a plan of the Property. Furthermore, he was emphatic that Ms. Kavanagh did not explain the mortgage or anything about conflict of interest. When asked whether he signed an Authorization dated April 28, 2010, he replied, “I have no idea, I don’t remember signing on that day”. Indeed, in the aftermath of their brief session with Danny MacIsaac, Mr. Urquhart said that the couple were in a state of shock.

He went on to explain a feeling of helplessness as the family had left their rental accommodation and had already moved into the Property. He said they asked themselves, “what do we do now, if we don’t sign, we don’t own the house…what are we going to do, I guess we sign. Wherever she pointed to, we signed. We did not look at the documents, not a single document was explained to us”. [ 75 ] On cross-examination Mr. Urquhart disagreed the closing was “consistent with a convivial atmosphere”. He reiterated, “it was a shocking experience to find all of the sudden the water easement was upon us. We were numb.

We were speechless. We were staring at one another”. [ 76 ] When the couple left Mr. MacIsaac’s office, Mr. Urquhart said they were given one piece of paper, a Statement of Adjustments. [ 77 ] Mr. Urquhart said the couple had no further contact with Danny MacIsaac’s office until Mr. Urquhart called approximately two and a half years later requesting his file. Upon making the request, Mr. Urquhart noted that Ms. Kavanagh expressed surprise that the office had not sent anything to the Urquharts in the days or weeks following May 10, 2010. Exhibit 8 was introduced, consisting of a page and a half of Mr.

Urquhart’s typed notes of his October 25, 2012, conversation with Ms. Kavanagh. The notes were made at the suggestion of Mr. Urquhart’s counsel and they are supportive of his viva voce evidence. [ 78 ] Mr. Urquhart was shown Ms. Kavanagh’s August 4 and September 15, 2017, statements. Specifically asked about her conflicting versions of their interaction, Mr. Urquhart said he “one hundred percent disagreed with Ms. Kavanagh’s will say statements”. [ 79 ] Mr. Urquhart was taken to Danny MacIsaac’s December 7, 2012, letter addressed to his counsel (Exhibit 1, tab 1, p. 231 – 234).

He took issue with numerous assertions made by Danny MacIsaac in his letter. [ 80 ] Mr. Urquhart was shown tab 15 of Exhibit 2, the Company lawyer’s December 20, 2012, letter addressed to his counsel. Until receipt of this letter, it was Mr. Urquhart’s understanding that the Company had taken the position that there was uncertainty regarding title to the upper lot. With respect to the allegation that Mr. Urquhart trespassed by entering the Company’s shop, Mr. Urquhart clarified that he attended there at Ron MacIsaac’s invitation. He said he spent two or three days working on repairing the differential on Ron’s

tractor. In addition to refuting other assertions in the letter, Mr. Urquhart said that he was upset, “because someone was saying they owned our driveway and this was the first we had any idea of this”. Mr. Urquhart said the idea that he did not own the driveway came as a shock. [ 81 ] Mr. Urquhart agreed that it was not until Spring of 2015 (during the discoveries) that he learned that Ron and June MacIsaac had conveyed the garden lot.

Having said this, he agreed that upon receipt of the file materials from Danny MacIsaac (Exhibit 1, tab 1), this could have been determined; however, “we were concentrating on the lane not the garden lot in 2012”. [ 82 ] Mr. Urquhart testified that he was not aware of the Nova Scotia practice which generally involves a property being inspected before an APS is finalized. Mr. Urquhart knew nothing about the (standard) APS. As to the notion that Danny MacIsaac was doing subdivision work for Ron MacIsaac in the area, Mr. Urquhart testified he had “no idea”. Kerry Urquhart [ 83 ] Ms.

Urquhart provided her account of what took place at Danny MacIsaac’s office. She recalled waiting with her husband in a “little annex part, when Boyd came in”. He asked her if she was looking forward to purchasing the Property and she replied that she had some reservations. [ 84 ] Ms. Kavanagh called the Urquharts into her office, “we were invited over to her desk, piled high with files”. There was no space on the desk for writing and when they were given papers to sign they had to do so, “on top of mounds of paper”. [ 85 ] Ms.

Urquhart said her husband asked if they could look at the paperwork, “he started to read and explain to me and then came to the point of the well easement. Anne Marie was there and Richard said, ‘what is this’ and she explained, a well easement for Boyd and Theresa to take water from our well as they saw fit”. On hearing this, the Urquharts asked to speak with Danny MacIsaac. [ 86 ] Ms. Kavanagh left to get Mr. MacIsaac. She returned about two minutes later, letting them know that Danny MacIsaac would be out to see them. After three or four minutes, “Danny came bustling in to ask what our problem was.

He had a very abrupt manner. He asked what our problem was. Richard explained we spotted a well easement. We knew there was water issues and were really concerned. Danny’s response was very flippant, “there’s all sorts of water in that well, its never run dry”. Ms. Urquhart continued by saying no legal options were provided and Mr. MacIsaac did not explain the easement. She stated, “he abruptly walked off. We had never met Danny MacIsaac before. He didn’t introduce himself. He didn’t discuss any other aspect with us. He said absolutely nothing regarding conflicts of interest”. Ms. Urquhart also stated that Ms.

Kavanagh provided them no information in these areas. She said, “I felt shocked, the rug had been pulled from under my feet. We just knew the well to our perfect home could be used by someone else as they saw fit. We had no alternative as we had given up our rental and had moved in, we had done a lot of work and fallen in love with the property. We had no option but to sign. We were given no legal advice or anything else”. [ 87 ] Ms. Urquhart said it would be obvious to Ms. Kavanagh that, “we had gone very quiet, our shoulders were slumped. We just went about signing documents that Anne Marie put in front of us”.

Ms. Kavanagh did not explain anything they signed. They were not shown a survey at Danny MacIssac’s office. The meeting began in a cordial fashion but “after the way we were treated by our lawyer, he did not give us the time of day, it was not cordial”. [ 88 ] Ms. Urquhart was asked about the possibility that her husband may have met with Boyd MacIsaac in February of 2010 regarding the driveway. In reply, Ms. Urquhart stated, “Richard never relayed any such conversation. We would not have gone ahead. We needed access to the barn”.

Boyd MacIsaac [ 89 ] Boyd MacIsaac admitted being present at Danny MacIsaac’s office on May 10, 2010. He said he did not understand it to be the closing date and, “I was in Danny MacIsaac’s office frequently”. He recalled a conversation with Kerry, she was “a little worried” about buying the farmhouse to which he replied, “I’ll buy it back”. Boyd MacIsaac denied having a conversation with Danny MacIsaac about the Urquharts or the sale of the Property. Daniel J. MacIsaac [ 90 ] Mr. MacIsaac is 67 years of age. He was born and raised in Antigonish County. Mr.

MacIsaac graduated from high school in 1967 and received a B.B.A. from St. Francis Xavier in 1970. He attended at Dalhousie Law School, graduating in 1973. Mr. MacIsaac was admitted to the Nova Scotia Bar on March 5, 1974. For the past 43.5 years he has practiced as a sole practitioner in the town of Antigonish. DJMI Legal Services Limited is Mr. MacIsaac’s legal corporation and his offices are located at 30 Church Street, Antigonish. [ 91 ] Mr. MacIsaac described an “evolving practice” which involved Provincial Court appearances when he was starting out.

Over the years, he has done a “fair bit of civil litigation” and his practice has centered on property and estate work. Mr. MacIsaac has appeared at all levels of Nova Scotia courts. He describes his law practice as, “a country practice of a general practitioner, mostly property based”. [ 92 ] Mr. MacIsaac described with pride being voted as The Casket newspaper’s best lawyer in Antigonish for the fourth consecutive year, “every year since they had it, people here trust me”. He estimated carrying out 250 property transactions within the last year. With respect to 2010, “you might take off ten to twenty percent”.

Mr. MacIsaac stated, “for the past 43 years I have searched all of my properties”. He possesses an interest in history and enjoys his time spent in the Registry. Mr. MacIsaac affectionately referred to his office staff as “the girls” consisting of Ms. Kavanagh (for almost 40 years), his wife (34 years) and Betty King (the last 3 years). He described himself and his team as “very dedicated to our work”. [ 93 ] Mr. MacIsaac spoke in glowing terms of Ms. Kavanagh. He praised her and noted that she was first in her class at St. Francis Xavier University.

He described their working relationship, “over the years the work was divided between her and I. I searched land

titles and write the reports and turned it over to Ms. Kavanagh. Ms. Kavanagh would do all the legal documents and handle all the money. The closing would take place and Ms. Kavanagh would register the documents and attend on report letters”. [ 94 ] Mr. MacIsaac described the transaction between Ron and June MacIsaac and the Urquharts as, “the Lot 6 conveyance as part of a larger series of transactions”. He explained how he would migrate the entire property and then, “the surveyor takes over”. [ 95 ] When Danny MacIsaac was asked to describe his relationship with Ron MacIsaac, it brought tears to his eyes. Mr.

MacIsaac was under 25 years of age when he first met Ron. He has been Ron MacIsaac’s lawyer, “all my legal life”. When questioned about a personal relationship, Danny MacIsaac clarified that he had only been to Ron MacIsaac’s home on three occasions. He described Ron MacIsaac as, “a paternalistic and caring individual…we operate in a pastural world of complete trust”. [ 96 ] Danny MacIsaac was referred to his title search on the Property, noting that it was completed on January 11, 2010.

He noted the plan of subdivision was registered at the Registry of Deeds on March 30, 2010. [ 97 ] With respect to how he was retained by the Plaintiffs, “we received word that Mr. and Mrs. Urquhart wanted to buy the property and that he was employed by Boyd. My secretary asked, would I act for both sides and I said yes, on the condition that the property is appraised. Ron and his family go back with me a long time but under no circumstances would I act if the property was not appraised”. [ 98 ] Mr. MacIsaac said, “I relied completely on the plan of subdivision”.

He added, “it’s not my function to second guess the surveyor”. As for the conveyance of the garden lot, Danny MacIsaac said, “I knew he [Ron MacIsaac] wanted it done and it was going to Boyd. We would have been told by Ron to do this”. He said he had “no recollection” why Ron MacIsaac was conveying the garden lot to the Company. He then stated, “we didn’t deal with Boyd at all regarding this subdivision or the lots. All of our dealings were with Ron. We got Ron in and he signed the Deed”. Mr. MacIsaac said he did not receive instructions from either Ron MacIsaac or Mr. Urquhart on the driveway.

He added, “I missed the existence of the road at the time of the closing. I freely admit that”. Danny MacIsaac said there was no discussion with Ron MacIsaac or the Urquharts with respect to the encroachment of materials. [ 99 ] Danny MacIsaac recalled the closing, “the Urquharts came in and Ms. Kavanagh reviewed the documents with them”. This was done in his office and, “that was when I first saw them”. He added, “it is common practice to bring clients into my office, I like to stay in control and demonstrate to clients I have knowledge of title”. [ 100 ] Ms.

Kavanagh remained present throughout his interaction with the Urquharts. Mr. MacIsaac estimated he spent 10 – 15 minutes reviewing the documents with the couple. Asked about the water easement, “I raised the water easement with them…look Boyd has water rights here…because I wanted him to know”. He said this advice was met with, “no argument and no dispute, it was completely cordial and harmonious”. Although he did not remember what the Urquharts said, Mr. MacIsaac remained steadfast that it was a “harmonious, uneventful closing”. He added, “I did not give them assurances regarding the quantity of water.

That is something no lawyer would do. I didn’t know. A lawyer’s undertaking is a very serious matter”. [ 101 ] Mr. MacIsaac did not know the Urquharts were living in the home prior to the closing. Asked about the lack of an APS, he responded, “if there wasn’t one, there was nothing to prevent Mr. Urquhart from getting up and walking out”. He added that he had been involved in many transactions over 43 years without an APS. [ 102 ] Questioned about the Authorization, Mr.

MacIsaac noted that Code of Ethics in place at the time stated that it is preferable to have parties agree in writing that a lawyer would be acting for both sides. He would have advised the parties that, “if there is a conflict, I wouldn’t be able to act for either side then”. He belatedly inserted the number 28 to reflect that the Authorization was first signed on April 28, 2010, by Ron and June MacIsaac, stating, “there is nothing illegal about filling in the date”. He said that he was present when the Urquharts signed the documentation and saw no indication of unhappiness.

There was no dispute regarding the easement and the Urquharts did not raise any questions about him acting for the MacIsaacs as well. He added there was no discussion regarding the Urquharts plans for the Property. Danny MacIsaac said it was, “incomprehensible to me that two years would go by” before he would learn of any trouble. [ 103 ] Mr. MacIsaac was referred to Mr. MacIntosh’s November 23, 2012, letter addressed to him outlining the Urquharts’ concerns and his December 7, 2012, reply correspondence.

Asked whether his letter could be construed as him taking sides, he responded, “I have been 43 years in and out of the Registry of Deeds. It is impossible to take sides when you go into the Registry of Deeds. Regardless of personal affection for in this case, Ron and June MacIsaac, in no way would this affect my professional judgement. When I need to act for both sides, I lay it out, the transaction has to be supported by an appraisal”. [ 104 ] On cross-examination, Mr. MacIsaac was taken through his letter in detail. He agreed he had a duty of candor and accuracy when acting for the Urquharts.

He agreed he did not disclose his long-standing history of acting for Ron MacIsaac and Boyd MacIsaac. When pressed about the contents of his letter, Danny MacIsaac referred to the old lady who lives in a shoe nursery rhyme and said that the Urquharts were free to contact his office. He said it was not his function to “second guess the surveyor”. Having said this, he agreed the survey plan was supposed to be a reflection of the clients’ interests because his two clients each had their own interests. [ 105 ] Danny MacIsaac agreed that he did not give the Urquharts any advice regarding the purchase.

He acknowledged that he did not meet with the Urquharts until the closing date. He added, “the pith and substance is to make sure it’s not a bad deal”. [ 106 ] Asked whether he felt that it was his duty to get to know new clients, Mr. MacIsaac responded, “that’s too broad a question for me to answer”. He continued by saying property work is a technical trade and, “I don’t see that there is a duty to know and love my client”. [ 107 ] Danny MacIsaac has acted for BCU since becoming a lawyer in 1974. He agreed the BCU standard instructions refer to the presence of an APS. On cross-examination, Mr.

MacIsaac agreed it was not appropriate to assume BCU had an APS, “there’s a deficit in our instructions”. Mr. MacIsaac was pressed on cross-examination as to how he could close a transaction when he believed there was an APS, yet he had not seen the terms. He responded that he had a purchase price, survey, completed a title search and had an easement,

“that was it”. [ 108 ] Mr. MacIsaac agreed he should have inquired of the Urquharts whether they had an APS. He agreed there was an absence of a property disclosure statement and, “it would have been helpful”. Mr. MacIsaac said he was not aware of the equipment on the Property.

As for the water easement he acknowledged it would have been better to tell the Urquharts perhaps a month in advance rather than the 10 – 15 minutes prior to signing the closing documents. [ 109 ] Questioned about the Urquharts reviewing the documents, Danny MacIsaac stated, “in 44 years, I have never seen a client sit down and read all of the documents”. As to who reviewed the documents with the Urquharts, he responded, “I was there. I would have been in control. She would have shown the boundaries”. Mr.

MacIsaac then stated, “I was only involved with the water easement…I may have talked about other documents as well”. [ 110 ] Ms. Kavanagh had the package of documents and they went through them together. Having said this, he said he was not “exactly sure” how the Authorization was explained to the Urquharts. He said, “the documents would have been presented by Anne Marie, I can’t recall if we would have elaborated or not…after 40 years together it’s difficult to draw the line between what one and the other does.

I take full responsibility for what went on”. [ 111 ] Asked about the swearing of the documents, “I didn’t take out a Bible and formally swear them. I watch them sign and then affixed my signature. I would have signed within hours”. [ 112 ] Danny MacIsaac described the water easement as, “just a general easement”. He was then taken to an April, 1999, water easement in his file, Exhibit 21. He agreed that the “protective measures” afforded to the purchaser in the April, 1999 water easement were not provided to the Urquharts. [ 113 ] Mr.

MacIsaac agreed he, “spent very little time reviewing the survey plan with the Urquharts”. Furthermore, he did not have a copy of the pencil drawn sketch Ron MacIsaac had prepared. Mr. MacIsaac admitted, “I had no knowledge of what they agreed to”. Mr. MacIsaac said he did not agree that he had an obligation to advise the Urquharts once he learned the garden lot was extracted from the conveyance. As for the barn, “I didn’t direct my mind to a barn, I just missed it”. As for the situation with the driveway, “I did not direct my mind to the driveway.

At the time of the closing I was not aware the roadway encroached over on parcel C”. He said he did not think it was a relevant issue but later acknowledged, “clearly it was relevant”. He had no discussion with the Urquharts as to whether they should have had a survey or plot plan completed. Mr. MacIsaac questioned whether he could, “seriously recommend” a client spending money on these steps. He did not feel a duty to inform his clients of the option of taking these steps. [ 114 ] Mr.

MacIsaac confirmed that he had no discussions with the MacIsaacs regarding ownership and placement of the driveway on the garden lot. He agreed that he did not pick up the file and go through it page by page. Further, if he did a file review he did not note an APS. [ 115 ] Mr. MacIsaac was directed to Exhibit 22, the Nova Scotia Barristers’ Society Legal Ethics Handbook, chapters 2 and 6. It was his view that he complied with these provisions and, “it’s all about them providing informed consent”. With specific reference to the water easement, it was put to Mr.

MacIsaac that he informed the Urquharts but gave them no option to agree or disagree. Further, he agreed that both the MacIsaacs and the Urquharts did not intend for the driveway to go with the garden lot (which was conveyed to the Company). [ 116 ] Mr. MacIsaac reported back to BCU within five and half months of the transaction, whereas the Urquharts received their information two and a half years later. Questioned as to whether this could be a double standard, he replied, “I think not”. He then agreed that the inordinate delay was a “deficiency”.

He elaborated that at the time of the closing, Anne Marie’s usual words were to the effect that the clients would have their documents within two weeks, adding, “I have no specific recall of this one”. [ 117 ] There was no retainer letter. Apart from the succinct title searches, there are no file notes pertaining to the transaction. Indeed, the file is void of notes but for a few of Ms. Kavanagh’s entries on the file folder. [ 118 ] On cross-examination, Danny MacIsaac was questioned about the use of the garden lot. He responded, “this would be about the worst thing you could put in an agreement.

It would only work if it was harmonious. With a change of circumstances acrimony would break out. I would have very forcefully recommended against that…such a monster”. [ 119 ] During cross-examination by Mr. James, Mr. MacIsaac agreed he did not advise the parties that he represented BCU. Further, he did not send copies of the documents to all three parties. He agreed he was never asked by the MacIsaacs to withhold any information from the Urquharts. Anne Marie Kavanagh [ 120 ] In December of this year, Ms. Kavanagh will have worked forty years for Danny MacIsaac. Ms.

Kavanagh achieved her Bachelor of Secretarial Arts degree from St. Francis Xavier University in May, 1977. She described her role at DJMI Legal Services Limited as having a “main focus on real estate transactions”. Over the years, Ms. Kavanagh said the office became “much busier” than when she started in 1977. The past year, she estimated handling about 200 real estate files, an amount somewhat higher than in 2010. [ 121 ] Ms. Kavanagh described the general routine for vendors and purchasers in real estate transactions.

She described her role as doing most of the work with Danny MacIsaac, “always searching the titles”. Ms. Kavanagh explained that in 2010 the office used an Authorization form when acting for both sides but this has changed and they now use what she referred to as a “Retainer”. [ 122 ] Ms. Kavanagh spoke to screenshots of Lot 6 entered as Exhibits 14 and 15. Ron MacIsaac told her that he hired surveyor, Stewart MacPhee, to do a subdivision plan for his property in Antigonish County. She was shown another screenshot, Exhibit 16, featuring a clickable icon stating “view plan”. Ms.

Kavanagh was then taken to Exhibit 17, the subdivision plan (resulting from clicking on the icon). She said she “definitely” would have looked at the plan, what she described as the “all important document”. Further, “we

printed it off in an 11” x 17” tabloid size paper from this icon”. [ 123 ] During cross-examination Ms. Kavanagh agreed that she could have provided the Urquharts more than she demonstrated through Exhibits 14, 15 and 16. With reference to Exhibit 16, Ms. Kavanagh maintained that she printed off the survey and reviewed it with Urquharts. Of the two surveys depicted on Exhibit 17, Ms. Kavanagh said she enlarged the “lower version” and agreed it did not show the garden lot measurements. Further, she acknowledged measurements were only depicted on the upper drawing (which she did not provide to the Urquharts). Ms.

Kavanagh agreed that the circular driveway shown on the plan overlaps with the lineal line. Ms. Kavanagh later acknowledged, “we had no instructions regarding the driveway going with the buyers or sellers”. She agreed that the plans at pp. 19 and 20 of Exhibit 2 (part of Mr. MacIsaac’s file) were small such that one would need a magnifying glass to properly read them. It was pointed out that the plan on p. 19 was not included in the file provided to the Urquharts. Ms. Kavanagh said this could have been missed but that “they did see it in the beginning”. [ 124 ] Ms.

Kavanagh stated that Ron MacIsaac attended at the office and spoke with Danny MacIsaac. It was her understanding that he wanted to subdivide and sell his Antigonish County property to various individuals. She said there had been a preliminary plan and then a revised plan. Ms. Kavanagh was aware that Ron MacIsaac was selling his house to the Urquharts for a purchase price of a $150,000. According to Ms. Kavanagh, Ron MacIsaac thought the Urquharts were going to also retain Danny MacIsaac. She asked Danny MacIsaac if he would act for both parties on the transaction.

He replied that provided there was an appraisal, he would be prepared to act for both sides. [ 125 ] Ms. Kavanagh and Mr. MacIsaac looked at the Plan and received a package of mortgage documents from the BCU, “which advised we would be acting for the Urquharts”. Accordingly, Ms. Kavanagh contacted Mr. Urquhart and he confirmed this to be the case. Ms. Kavanagh stated, “I would have gone over the purchase price and the mortgage and that Danny would be acting for both sides”. Asked about other conversations prior to the closing, Ms. Kavanagh replied, “I think I spoke with them several times”.

She thought she would have discussed the following: • fire insurance • setting the closing date of May 10 • mortgage for $120,000 • that they would have to bring in the down payment and closing cost money • no deposit would be tendered prior to the transaction [ 126 ] On cross-examination, Ms. Kavanagh said she initially called Mr. Urquhart. She would have confirmed the price of $150,000 but could not remember anything about the survey plan. She added, “I’m sure that I told him that we represented Ron as well and would that be okay, I always say this”.

She said that she did not have training regarding conflicts of interest but this came from her experience. [ 127 ] Asked why May 10 was chosen, Ms. Kavanagh thought it might have had something to do with waiting on a water test. She said that Ron MacIsaac had come in earlier to sign the Deed and confirmed there was no APS. She said she had no concerns about this at the time, “it seemed Ron and the Urquharts had the plan done and discussed. There were no issues, everything was going to go through smooth. Normally, Bergengren needs an APS…Mr. MacIsaac and I just assumed they had one”. [ 128 ] Ms.

Kavanagh was taken to the May 10 day of closing. She said, “I typed up the easement, Mr. MacIsaac would have dictated it. Danny and Ron must have discussed this and then I was asked to prepare”. She described having a “standard package” for the Urquharts including: • Authorization to act for both sides • Mortgage appraisal and Disclosure Statement • Mortgage • Closing Account • Survey Plan [ 129 ] The Urquharts arrived and were seated in the waiting room. Ms. Kavanagh stated, “I believe I gave them the package to review and then they went into Mr. MacIsaac’s office.

I asked them to read over the documents, if they had any questions or concerns to bring up. I went over the statement of account and the mortgage terms and payments. I described it as a lien on the land. I would have said if there was no payments, they foreclose. I probably would say the Authorization is because Danny would be acting for both parties”. [ 130 ] Asked whether Boyd MacIsaac came into the office just prior to the closing, she said she could not recall. Ms. Kavanagh stated, “if Boyd was in, it had nothing to do with the transaction.

He was in and out of the office all of the time signing Statutory Declarations”. [ 131 ] Ms. Kavanagh was referred to Exhibit 2, tab 1, p. 62 the Authorization signed by the parties. She said the Urquharts were brought in to Danny MacIsaac’s office to sign the papers, “I like him to meet clients so if they have any questions they can ask him”. Ms. Kavanagh could not recall the Urquharts asking any questions and that they “seemed fine”. The couple reviewed the survey plan and mortgage and then there were some questions about the well easement.

They wanted “a little bit of an explanation… he explained the well on this property would serve Boyd and Theresa’s property across the road which was not new. It was just never put on paper”. Given this explanation, “I have no recall whether Mr. Urquhart was upset…I have no recall of shock. I thought the tone was fine and that they had no concern, there was no hesitation on the part of signing documents”. Ms. Kavanagh said she collected the funds from the Urquharts and they left with the understanding that the office would contact Ron MacIsaac and prepare the cheque for delivery to him.

[ 132 ] On cross-examination Ms. Kavanagh said, “I believe Mr. MacIsaac may have told them a burden was on the land”. She allowed the Urquharts may have been “a little” surprised. [ 133 ] Ms. Kavanagh was challenged regarding whether or not she showed the driveway to the Urquharts. She agreed that nothing on the plan says “driveway” and what is depicted could be a pathway or lane. Asked whether she observed the driveway was in the garden lot and not in Lot 6, Ms.

Kavanagh replied, “nobody brought this up”, adding, “Ron never mentioned that the driveway was supposed to be going with Lot 6”; i.e., the Property. [ 134 ] Ms. Kavanagh said the first time “we heard any issues” was when Mr. MacIntosh wrote Mr. MacIsaac on November 23, 2012. She recalled Mr. Urquhart phoning the office (she did not think she took the call) much later to request the file. [ 135 ] Ms. Kavanagh was asked about her memory of specific transactions. While acknowledging it had been over seven years since this transaction and she had been involved with hundreds since, Ms.

Kavanagh nevertheless said that she remembered “most of this one”. She added, “I do remember closings that are upsetting, acrimonious when people storm out, not this one … if they were upset, I had no idea, there were no raised voices, there was no hesitation to sign those documents”. [ 136 ] Ms. Kavanagh agreed the legal description is always contained in the mortgage. Ms. Kavanagh described this mortgage as containing a “short form” description. [ 137 ] Ms. Kavanagh was asked about the process for swearing documents.

She said that Danny MacIsaac saw the Urquharts sign documents and like all clients, “we tell them, you are swearing that this is correct”. [ 138 ] Ms. Kavanagh did not advise the Urquharts that Danny MacIsaac routinely acts for the BCU. She thought that she must have provided the Urquharts a form advising Danny MacIsaac also acts for BCU; however, she added, “I haven’t found it yet”. [ 139 ] It was noted that there was nothing in Mr. MacIsaac’s file regarding an APS. Ms. Kavanagh agreed that she could have asked the parties or called the BCU about an APS but did not.

Asked whether the file cover notation of “no deposit” was a red flag regarding the lack of an APS, Ms. Kavanagh said that not every such agreement involves a deposit. She was not aware that an APS was not enforceable without a deposit. [ 140 ] Ms. Kavanagh was asked how the deal could be closed if nothing was obtained regarding the terms of the agreement. She responded saying both parties had advised of the $150,000 purchase price and, “it seemed a straight forward deal”. [ 141 ] On cross-examination, Ms. Kavanagh was referred to Exhibit 13, the large subdivision plan.

She agreed, “you need the big one (survey) to see all of the property distances”. She agreed that the enlargement provided to the Urquharts made mention of the garden lot. As to what the Urquharts said in regard to the survey plan, wherein the driveway “disappears”, Ms. Kavanagh responded, “they said nothing”. She agreed the garden lot had been conveyed in February but that she did not provide a copy of the Deed to the Urquharts. [ 142 ] Ms.

Kavanagh confirmed that just over $3,000 in fees were charged to Ron MacIsaac and she characterized the work performed for him as pertaining to, “a large project”. [ 143 ] She agreed she did not explain the difference between the September, 2009 and February, 2010 surveys to the Urquharts. Ms. Kavanagh agreed the plan with Ron MacIsaac’s pencil markings on it was not in the file and that she had never seen it before. She said she did not know who give the instructions to subdivide the garden lot.

As to whether she called the Urquharts to advise them the garden lot was being cut out, she replied, “no, I wasn’t sure they were buying that property then”. [ 144 ] Ms. Kavanagh agreed that Ron and June MacIsaac would have been in the office on at least three occasions to sign documents referable to the garden lot, well easement and Warranty Deed. She agreed that the two survey plans are different as the garden lot was only created in the latter plan. [ 145 ] Ms. Kavanagh agreed the Authorization was not dated when it was signed.

She stated that approximately two and one half years later [April 28, 2010], “we went back and dated the day when Ron and June signed, they were the first to sign”. [ 146 ] Ms. Kavanagh said, “from what I remember, the Urquharts were asked to sign the documents in Mr. MacIsaac’s office”. As to whether she could be mistaken, Ms. Kavanagh allowed, “sometimes clients sign documents on clipboards on the front of my desk”. Asked who instructed her to prepare the well easement she replied, “I believe Ron would have”. [ 147 ] Ms. Kavanagh acknowledged Danny MacIsaac had familiarity with properties on the Dunmore Road.

She said, “he had a lot of dealings with Ron and June going back years, to the 70s”. She agreed with the characterization of both Ron MacIsaac and Boyd MacIsaac as long-term, solid clients and that this was not disclosed to the Urquharts. [ 148 ] Ms. Kavanagh agreed that she was assigned to explain documents and, “I think that happens in a lot of law offices, I know in fact”. She agreed there were certain symbols on the survey that she was unable to explain. [ 149 ] Ms. Kavanagh was referred to Exhibit 2, tab 1, p. 56 and the Deed Transfer – Affidavit of Value wherein she signed as Agent of the Grantee.

She agreed that she did not seek permission to sign in this capacity. She reviewed all of the documents placed in front of the Urquharts with the exception of the water easement and survey plan. She agreed, “very little time was spent on the survey plan”. [ 150 ] Ms. Kavanagh said no formal retainer letter was sent to either of the parties. [ 151 ] During Mr. James’ cross-examination, Ms. Kavanagh agreed she was not the lawyer and, “just the little old secretary”. She agreed she was not asked by Ron and June MacIsaac to withhold any information from the Urquharts.

With respect to the Authorization, “that’s all we ever discussed back then, I just read the short authorization but we usually clear an area, I may have had a clipboard”.

The Question of Whether the Urquharts Knew of the Well Easement Prior to the Closing Richard Urquhart [ 152 ] Mr. Urquhart was emphatic that in the time before he bought the Property, he knew nothing of a well easement. He said this was not discussed with anyone prior to the closing. The only reference to the well was in relation to Ron’s promise to install a new pump. Mr. Urquhart remembered a backhoe driver (Francis) plugging cement and feeding an electric cable out of the side of the well. There was no discussion of a separate line going to Boyd MacIsaac’s home. Furthermore, Mr.

Urquhart was firm that Boyd MacIsaac was not present when the new jet pump was installed. Mr. Urquhart said that when he observed the well it was muddy and there was no discussion of a line going to Boyd’s house. As to the allegation that Boyd talked to Mr. Urquhart about the easement prior to the closing, Mr. Urquhart denied this and noted that Boyd MacIsaac was living in Loch Harbour at the time. [ 153 ] Mr. Urquhart said he was advised by BCU that the Property’s well had to pass a water test. The first sample failed because Mr. Urquhart did not shock the well.

He was unfamiliar with the Nova Scotia custom of using Javex or the like to assist with cleansing the water. After learning of this from co-workers, Mr. Urquhart recalled shocking the well during the time his family was living in the house, prior to closing. With the permission of Ron and June MacIsaac, the Urquharts had moved into the Property, by Mr. Urquhart’s estimate, some four – five weeks prior to closing. Kerry Urquhart [ 154 ] Ms. Urquhart was asked about her recollection about the shocking of the well.

She said that Boyd and Theresa MacIsaac were not present during this time because they were living at their Loch Harbour home. She said that she did not see Boyd or Theresa MacIsaac spend any time at the home across the street which she described as a log cabin. Ron MacIsaac [ 155 ] Ron MacIsaac said that he told Richard Urquhart he was going to put in a new pump, and after their handshake, installed a deep well submersible pump. Mr. MacIsaac said Richard Urquhart was present when the installation occurred. He also recalled a discussion with Mr. Urquhart concerning the shocking of the well. Mr.

MacIsaac thought that Boyd was present because he wanted to be informed when the shocking would take place as it would affect their water supply. [ 156 ] On cross-examination Ron MacIsaac said that Richard Urquhart popped by when he was having the new pump installed. He agreed that the shocking of the well came at some point after this. Theresa MacIsaac [ 157 ] Theresa MacIsaac is married to Boyd MacIsaac and the daughter-in-law of Ron MacIsaac. She testified that in 2010 she and her family lived next to the Urquharts and in Loch Harbour, “we were always back and forth”. [ 158 ] Ms.

MacIsaac spoke with Richard Urquhart about the water on the Property. He was concerned about the water and she reassured him there were no problems. She said that before his purchase of her in-laws’ property, she asked him to tell her when he was going to shock the well. She could not recall if Kerry Urquhart was involved in the conversation. Ms. MacIsaac could not recall if Mr. Urquhart told her he had shocked the well. [ 159 ] On cross-examination, Theresa MacIsaac agreed that her Loch Harbour home is fully winterized and is assessed at $365,000 and likely has a higher market value.

She agreed their house on the Dunmore Road to be a three bedroom, log home consisting of a story and a half over a basement. On further questioning, it emerged that she and her family spent a considerable amount of time at the Loch Harbour home in 2010. [ 160 ] Theresa MacIsaac agreed that there is a water line that goes from what was her in-laws’ home to her property on the Dunmore Road. She did not explain the situation in those words when she spoke with Richard Urquhart; however, she recalled telling him that she did not want the Javex to damage her laundry.

She initially said this discussion took place before the Urquharts moved in but then said they had a conversation after they moved in. Boyd MacIsaac Boyd MacIsaac said that the well on the Property had high iron content and Richard Urquhart, “asked a lot of questions about the well because he was concerned about the volume of water. I told him there was no concern with the water supply. I said to Richard, “make sure you let us know” when you shock the well”. Mr. MacIsaac stated “there were three specific times for sure he contacted me” about shocking the well.

On cross-examination he stated, “through conversation I knew he did it three times”… I had three conversations with Richard over the phone and I have very vivid memories of it”. The Company Encroachment Richard Urquhart [ 161 ] Mr. Urquhart was asked about the presence of the Company debris on the Property, post closing. He recalled discussing this with Ron who responded, “Boyd is working on it”. Further, Mr. Urquhart said Boyd MacIsaac raised the issue with him, stating “he shouldn’t be in a rush” to remove the equipment. Mr.

Urquhart responded by raising the prospect of the Company paying to store the equipment. This was met with, “rent, that’s a funny way of pissing your boss off”. Going forward Mr. Urquhart said that he relied on Ron, who he thought had it in hand, as he did not want to bother his (then) boss. [ 162 ] On cross-examination he was taken to his May 11, 2015, discovery evidence stating that it would be, “very foolish to demand that his boss remove the equipment”.

[163] Mr. Urquhart was taken to a Seller Brokerage Agreement he and his wife signed with Remax’s Kim Silver in April, 2012. Atthis point, the Urquharts had decided to list the Property and included with the agreement was a Property Condition DisclosureStatement. Mr. Urquhart said they signed this document “truthfully” because they had no knowledge of contamination on the Propertywhich they became aware of in the fall of 2012. [164] Mr. Urquhart recalled a September 2012 visit from Ron MacIsaac which he characterized as “quite strange”.

Ron MacIsaac toldhim that he had made a mistake when he conveyed the back lot of the Property to the Urquharts. He told Mr. Urquhart that Boyd wasangry with him and asked whether Mr. Urquhart would sell him the back lot. Mr. Urquhart replied that he would have to speak with hislegal counsel. He next met with Ron MacIsaac on October 17, 2012, and referred to a diary note which included this statement, “heasked if I had come up with a figure for them to buy the land that is being occupied by R.J. MacIsaac Construction.

I told Ron that no Ididn’t I have a figure in mind and that I had spoken to my lawyers and they would be in contact in due course”. Rather than agreeing tosell the land back to Ron MacIsaac, Mr. Urquhart submitted a compliant to the Nova Scotia Department of Environment (“DOE) withrespect to the Company, “overbearing on the land”. [165] On January 7, 2013, Mr. Urquhart made a formal complaint to the DOE. On May 7, 2013, DOE issued a clean up order and onMay 23, Mr. Urquhart testified a Company crew arrived with machinery including a large excavator and bulldozer. In addition toremoving the debris, Mr.

Urquhart said they, “ripped up trees and the lawn by our house, I was freaked out and asked what was goingon”. He had a discussion with Company foreman, Mr. Tisdale, advising him, “I don’t want an eyesore as my house is up for sale”. Laterthat day, Mr. Urquhart was visited by Ron MacIsaac; “he had his head down and he said he was so sorry but Boyd was going to put thegear on the side lot”. Ron said that he would speak with Boyd and try to broker a deal; however, Mr. Urquhart heard nothing further. [166] On August 19, 2013, the DOE confirmed their investigation was complete.

Less than two months later on October 15, 2013,Mr. Urquhart woke up to find “a huge steel beam across the bottom of the driveway leading to the house”. On November 3, 2013, theUrquharts made the decision to re-list the Property. By this point, DOE had given the “green light” regarding the clean up and theUrquharts were able to confirm the Property was not contaminated. Ron MacIsaac [167] Ron MacIsaac could not remember any discussion about the encroaching equipment prior to the closing date.

On cross-examination, he said there wasn’t much material there, perhaps “lumber, pipe and rebar – it wouldn’t have been a big deal to clean up”. Rather than removing the material, Ron agreed that Boyd put more debris on the Property. With the aid of his discovery transcript RonMacIsaac testified he did not agree with Boyd putting the contamination on the Urquharts’ land. Boyd MacIsaac [168] With respect to the alleged contamination, Boyd MacIsaac said, “the Department of Environment report speaks for itself”,referring to the May 7, 2013 litter abatement order.

He denied that Company bulldozers filled in portions of the land or that there wasany oil on the Property. He later had Company employees put the equipment next to the Urquharts’ property because, “we were out ofland”. [169] Mr. MacIsaac said that the bulldozer operator told him that Richard Urquhart had been cleaning out his barn and placed oldequipment on the lot. Mr. MacIsaac denied the in-filling was “intentional” and described the area of encroachment as “very marginal”. Later, Boyd MacIsaac was shown a DOE note indicating that he suggested Richard Urquhart “may have done it”.

He denied pointing afinger at Mr. Urquhart stating, “I gave them a full history, I didn’t place the blame on anyone”. Credibility and Reliability [170] When embarking on my credibility analysis, I am guided by several cases including; Novak Estate (R.E.), 2008 NSSC 283, 2008 N.S.S.C. 283, at paras. 36 and 37 (per Justice Warner), Larkin v. Larkin, 2012 NSSC 439 , 2012 N.S.S.C. 439,at para. 6 (per Justice MacAdam) and Mi’kmaw Family and Children Services v. H.F., 2013 NSSC 310, at paras. 29 and 30 ( per JusticeForgeron). This case features diametrically opposed versions of the events of May 10, 2010.

The Urquharts testimony cannot bereconciled with the testimony of Danny MacIsaac or Anne Marie Kavanagh. Having observed the witnesses and most importantly,scrutinized their evidence, I am of the overwhelming view that the Urquharts were far more credible than Mr. MacIsaac and his legalsecretary. In this regard, I found both Mr. and Mrs. Urquhart gave their evidence in a straight forward, honest manner. Neither wereoverly rehearsed and their evidence flowed in a routine, albeit compelling manner. I absolutely accept their consistent recounting of whattook place at Danny MacIsaac’s office on May 10, 2010.

Indeed, I am of the view that when they went to see their lawyer about thepurchase of their new Canadian home it was a momentous event in the Urquharts’ lives. As such, I am not surprised with their level ofdetail when explaining the events. The Plaintiffs’ evidence on the routine at Danny MacIsaac’s office was buttressed by RonMacIsaac’s evidence of what happened when he attended there, certainly with respect to the perfunctory manner in which Ms. Kavanaghwent through the documents. [171] Additionally, I accept the Urquharts’ evidence of the cavalier way of Danny MacIsaac.

In this regard they spoke withconviction and clarity about how he treated them. This evidence is to be contrasted with Danny MacIsaac’s shaky recall of whathappened. Indeed, I have great difficulty accepting how Mr. MacIsaac can say he recalls he brought the well easement to RichardUrquhart’s attention when he cannot recall much else of what transpired on May 10, 2010. [172] The Plaintiffs’ specific evidence in this area is to be contrasted with the theme of Ms. Kavanagh’s evidence which was oftenprefaced with, “we would…”. Although Ms.

Kavanagh said she had a precise memory of her interactions with the Urquharts, this did nothold up when specifics were put to her on cross-examination. As for Danny MacIsaac, the cross-examination exposed inconsistenciesbetween his evidence and Ms. Kavanagh’s testimony. Furthermore, I found Mr. MacIsaac less than certain in critical areas such as theissue of the driveway. On balance, I did not find his characterization of his session with the Urquharts (routine and cordial) to beconsistent with having a distinct memory of telling the couple about the water easement.

My view becomes more skeptical when Iconsider the fact that Mr. MacIsaac has been involved in hundreds of property transactions in the seven and a half years since this one.

[ 173 ] While on the topic of credibility, I have to say that I found Boyd MacIsaac to be uncredible during large parts of his evidence. He presented as a very feisty witness who, although not a party, was hardly dispassionate. He was prone to overstatement and parts of his evidence were at complete odds with not only the Urquharts but his father, Ron MacIsaac. For example, Boyd MacIsaac told of a critical meeting with his father in the fall of 2009, whereby he was promised portions of the land ultimately conveyed to the Urquharts.

Not only did Ron MacIsaac deny such a meeting ever took place, there is not a shred of evidence to back it up. In this regard, no other witness spoke of having heard of such a meeting nor where there any documents whatsoever to support it having occurred. [ 174 ] With respect to Theresa MacIsaac, she presented as being a most uncomfortable witness. Indeed, I formed the impression she would rather be anywhere else than giving testimony in court.

She appeared to be intent on stating Richard Urquhart told her he was going to shock the well; however, she could not be specific about the circumstances and waivered on whether she was even living at her Dunmore Road property at the material time. [ 175 ] As for Ron MacIsaac, he presented as an honest witness but I have reliability concerns. Mr. MacIsaac’s advanced age may well have been a factor; during portions of his cross-examination he seemed prepared to agree to anything put to him. Although June MacIsaac did not provide viva voce evidence, I carefully reviewed her transcript (Exhibit 1).

Even through the printed page it is clear she (rather like her son Boyd) was a feisty witness. In addition she was unable to remember critical details and overall, I have reliability concerns regarding her evidence. Liability of Ron MacIsaac [ 176 ] It is my determination that a reasonable objective observer would conclude that Mr. Urquhart and Ron MacIsaac reached an agreement at their January 2010 meeting. Further, I regard their handshake agreement as an enforceable agreement. It is well settled that an agreement need not be in writing to be enforceable (see United Golf Development Ltd. v.

Iskandar , 2008 NSCA 71 , at paras. 75 – 76 ; J

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