United Pentecostal Church of Nova Scotia v. Nova Scotia Power Incorporated, 2020 NSSC 286

SUPREME COURT OF Nova Scotia Citation: United Pentecostal Church of Nova Scotia v. Nova Scotia Power Incorporated , 2020 NSSC 286 Date: 20200922 Docket: Hfx. No. 467795 Registry: Halifax Between: United Pentecostal Church of Nova Scotia Applicant v. Nova Scotia Power Incorporated Respondent DECISION Judge: The Honourable Justice John P. Bodurtha Oral Decision: September 22, 2020, in Halifax, Nova Scotia Written Decision: October 13, 2020 Counsel: Bruce T.

MacIntosh, for the Applicant Daniela Bassan and Jennifer Taylor, for the Respondent By the Court (Orally): Overview [ 1 ] The Applicant, United Pentecostal Church of Nova Scotia (“UPC”), moves to amend its Notice of Application in Court to provide further particulars and include a claim for de facto expropriation. [ 2 ] The Respondent, Nova Scotia Power Incorporated (“NSPI”), opposes the amendments and provides three standalone reasons for the motion to be dismissed: (

a) proportionality and jurisdictional grounds relying on the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 ; (

b) the amendments do not meet the test under Civil Procedure Rule (“CPR”) 83.11; or (

c) the amendments are not properly made against NSPI and represent a collateral attack on provincial approvals. [ 3 ] For the reasons that follow, I find the Applicant’s motion must be dismissed under CPR 83.11 because the limitation period has expired for the new claim raised by the amendments and, under the Limitation of Actions Act , S.N.S., 2014, c. 35 (“ LAA ”), there is no basis to allow the claim where the limitation period has expired. Facts [ 4 ] The Applicant’s original Notice was filed on August 31, 2017.

It alleged that a lease from 1893 authorized the flooding of the Applicant’s two properties identified by their respective property identification numbers (“PID”) 00505792 and 00505800. The lease agreement expired in 1992, at which time the water levels were not restored. [ 5 ] The causes of action in the original Notice were trespass and nuisance.

The Applicant sought damages, a permanent injunction, and an order directing the Respondent to cease flooding the two properties. [ 6 ] The Respondent filed a Notice of Contest on October 13, 2017 and an Amended Notice of Contest on April 4, 2018. [ 7 ] On December 6, 2019, the Applicant served its Notice of Motion seeking to amend its original Notice and, on January 23, 2020, filed a copy of its proposed Amended Notice of Application in Court. In its proposed Amended Notice of Application in Court the

Applicant raises the issue of “ de facto expropriation.” Copies of the original Notice and Amended Notice of Application in Court are attached hereto as Appendix “A”. Issue [ 8 ] Should the amendments to the Applicant’s Notice of Application in Court be allowed? Analysis [ 9 ] A Motion to Amend after the expiration of a limitation period depends on both of the following:

a) the material facts supporting the cause are pleaded; and

b) the amendment merely identifies, or better describes, the cause, see CPR 83.11(3) which reads as follows: Amendment by judge 83.11

(1) A judge may give permission to amend a court document at any time.

(2) An amendment cannot be made that has the effect of joining a person as a party who cannot be joined under Rule 35 - Parties, including Rule 35.08(5) about the expiry of a limitation period.

(3) A judge who is satisfied on both of the following may permit an amendment after the expiry of a limitation period, or extended limitation period, applicable to a cause of action: (

a) the material facts supporting the cause are pleaded; (

b) the amendment merely identifies, or better describes, the cause. [ 10 ] In the case before me, the question under CPR 83.11(3) after determining whether a limitation period has expired is twofold: (

a) whether de facto expropriation is a new “claim” or “cause of action” in the Amended Notice that is supported by material facts from the original Notice, and (

b) whether the amendments “merely add further particulars” to the claim of trespass and nuisance already set out in the Original Notice (the claim of nuisance is no longer being pursued in the amended Notice of Application). Do the Amendments Raise a New Claim or Cause of Action? [ 11 ] The Amended Notice of Application raises “ de facto expropriation.” The Respondent argues that this is a new claim raised by the Applicant and that it is statute-barred. [ 12 ] In Annapolis Group Inc. v. Halifax Regional Municipality , 2019 NSSC 341 , Justice Chipman considered a motion for partial

summary judgment. HRM argued that Annapolis’s claim for de facto expropriation had no chance of success. Justice Chipman’s findings are useful in determining whether de facto expropriation is a claim, or a declaration as argued by the Applicant. Justice Chipman confirmed that: (

a) Claims for de facto expropriation are relatively rare and restrictive in Canadian law. (para. 28) (

b) To have a chance for success, a claimant for de facto expropriation must be able to establish a regulatory action by a statutory authority. (para. 31) (

c) Annapolis’s de facto expropriation claim raises genuine issues of material fact requiring a trial. (para. 44) [emphasis added] [ 13 ] I am not persuaded by the Applicant that de facto expropriation is not a claim but a declaration for the purposes of CPR 83.11. De facto expropriation is referred to as a claim in Annapolis , supra , Alberta (Minister of Infrastructure) v. Nilsson , 2002 ABCA 283 , and Nova Scotia (Attorney General) v.

Mariner Real Estate Limited , 1999 NSCA 98 . [ 14 ] In my opinion, the claim for de facto expropriation is a new and independent claim from the tort claim of trespass in the original Notice. De facto expropriation in and of itself is a separate claim and not a declaratory remedy as argued by the Applicant. [ 15 ] CPR 83.11 requires the Court to determine whether the amendments raise a new claim or cause of action for which the material facts were not previously pleaded.

The new claim of de facto expropriation has extensive amendments to the original pleading to the point that very little content remains from the original pleading (see Appendix A – Amended Notice of Application in Court and Appendix B – Notice of Application in Court). The Applicant argues that very little content remains from the original pleading because the Applicant has better described the claim in the amended pleading. [ 16 ] I find the new claim of de facto expropriation introduces a new claim/cause of action that will require the Applicant to establish a regulatory action by a statutory authority.

The new claim raises public law issues while the original claims in trespass and nuisance are of a private law nature. This new claim adds a new statutory scheme, the Expropriation Act, R.S.N.S., c. 156 , to be considered at the hearing. [ 17 ] There are new material facts. The Amended Notice describes different properties than those identified in the original Notice as

the flooded lands. The two specific parcels of land identified by PID numbers in the Original Notice are crossed out and replaced withgeneric descriptions of “flooded” and “unflooded” lands at Miller Lake in the amended pleading. The Original Notice refers to 48 acres,while the amended pleading references 150 acres. [18] The new claim adds the Province, through the Nova Scotia Department of the Environment, regarding the Fall River hydro-electric system approvals, and the Nova Scotia Utility and Review Board (“UARB”).

The Amended Notice seeks new remedies such asan Order for de facto expropriation by this Court (liability) along with an Order for referral to another body, the UARB, if liability isestablished, for compensation (compensation). [19] I find the Applicant’s claim for de facto expropriation is a new claim and does more than merely identify or describe the causeof action, and the material facts supporting the new claim are not in the original Notice. I will next consider whether the new claim isstatute-barred.

Is the New Claim Statute-Barred? [20] The Applicant seeks “an order that the Respondent’s continued and unauthorized overholding of a portion of the Applicant’sproperty at Miller Lake constitutes de facto expropriation, effective December 1, 1992.” (see Amended Notice of Application in Courtfiled January 23, 2020). [21] December 1, 1992 is the date when a 99-year lease between NSPI and the Applicant’s predecessor-in-title expired, and when,the Applicant submits, the alleged act of de facto expropriation occurred.

Therefore, the limitation period began to run on December 1,1992. [22] Using the Applicant’s effective date of December 1, 1992, the claim would have become statute-barred as of December 1,1998 (see s. 2(1)(

e) of the former Limitation of Actions Act, R.S.N.S. 1989, c. 258). Alternatively, allowing the Applicant to use section8(1)(

a) of the LAA still provides a statute-barred date of September 1, 2017. The Applicant has provided no evidentiary basis for me toconclude that de facto expropriation can be “continuing” for the purposes of s. 8(3) of the LAA. [23] Justice Chipman in Dyack v. Lincoln, 2017 NSSC 187, provides a discussion on the purpose of limitation periods that I adoptand provide for reference: Purpose of Limitation Periods 27 In M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6 (S.C.C.), at paras. 22-24, the Supreme Court of Canada identifiedthree rationales that underlie limitations legislation.

They have been described as the certainty, evidentiary and diligence rationales: Statutes of limitations have long been said to be statutes of repose. ... The reasoning is straightforward enough. There comes a time, it issaid, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations.... The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence.

Once the limitation period haslapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim. ... Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bringsuit in a timely fashion. ... 28 There are also economic and public interest reasons for limitations legislation: People who provide goods and services may be adversely affected by the uncertainty of potential litigation. Economic consequences willdirectly flow.

A potential defendant faced with possible liability of a magnitude unknown may be unable or unwilling to enter into otherbusiness transactions. Others may be unaware of a specific claim until many years after an event upon which the claim is based.

The cost of maintaining records for many years and obtaining adequate liability insurance is ultimately passed on to the customer.1 29 Finally, there are judgmental reasons for limitation periods: If a claim is not adjudicated until many years after the events that give rise to it, different values and standards from those prevailing atthe time the events occurred may be used in determining fault. Because of changes in cultural values, scientific knowledge, and societalinterests, injustice may result.

Can it be said that the conduct of the "reasonable person" as perceived by a court today would accord with the view taken by a judge of an earlier generation?2 30 Accordingly, limitations legislation serves many important purposes. Over the last two decades, Alberta, Saskatchewan, Ontario,New Brunswick and Nova Scotia have all reformed their limitations legislation to serve those purposes more effectively.

Furthermore, in2005, the Uniform Law Conference of Canada (ULCC) adopted the Uniform Limitations Act, a model uniform limitations statute basedon the modernized legislation enacted in Alberta, Ontario and Saskatchewan. 31 Nova Scotia is the most recent province to overhaul its limitations legislation.

In drafting the Discussion Paper on Limitation ofActions Act the Nova Scotia Department of Justice relied on the discussion papers and modernized legislation of other provinces, along with the ULCC's Uniform Limitations Act.3 The Limitation of Actions Act, S.N.S. 2014, c. 35, came into force on September 1, 2015. [24]

Section 23 of the LAA contains the transition provisions for claims that occurred before September 1, 2015, the day the LAAcame into force. The Application was commenced on August 31, 2017 nearly two years after the LAA came into force. Subsection23(2) of the LAA says that subsection 23(3) applies to claims based on acts or omissions that took place before the effective date and in

respect of which no proceeding has been commenced before the effective date. This is a claim being added by the Applicant to anexisting proceeding. There has been no proceeding commenced in respect of the particular acts or omissions underlying the de factoexpropriation claim. Subsection 23(3) reads as follows, with the relevant dates inserted: 23(3) Where a claim was discovered before the effective date [i.e, September 1, 2015], the claim may not be brought after the earlierof (

a) two years from the effective date [i.e. September 1, 2017]; and (

b) the day on which the former limitation period expired or would have expired [i.e., December 1, 1998]. [emphasis added] [25] It is agreed between the parties that the new claim for de facto expropriation is based on acts that took place before theeffective date of the LAA, being September 1, 2015. The new claim relates to an event that took place on December 1, 1992. TheApplicant commenced their proceeding on August 31, 2017. The Amended Notice, filed on January 23, 2020, raised for the first timethe claim of de facto expropriation. I am of the view that the new claim is statute-barred by s. 23(3) of the LAA because it was notbrought by the earlier of: (

a) September 1, 2017 (representing the end of the two-year transition period under the LAA); and (

b) December 1, 1998 (representing the expiry of the former limitation period of six years from December 1, 1992) [26] The Applicant argues that the relevant provision under the LAA is

section 22 which "governs the addition of expired claims toan existing proceeding where the amendment would not add a new defendant or change the capacity in which a defendant is sued.": Dyack, supra, at para. 47. However, in order for

section 22 to apply, the limitation period at issue must be one “established by this Act”,meaning the LAA.

Section 22 reads as follows: 22 Notwithstanding the expiry of the relevant limitation period established by this Act, a claim may be added, through a new oramended pleading, to a proceeding previously commenced if the added claim is related to the conduct, transaction or events described inthe original pleadings and if the added claim (

a) is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either partysues or is sued; (

b) adds or substitutes a defendant or changes the capacity in which a defendant is sued, but the defendant has received, before or withinthe limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of theadded claim that the defendant will not be prejudiced in defending against the added claim on the merits; or (

c) adds or substitutes a claimant or changes the capacity in which a claimant sues, but the defendant has received, before or within thelimitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of theadded claim that the defendant will not be prejudiced in defending against the added claim on the merits, and the addition of the claim isnecessary or desirable to ensure the effective determination or enforcement of the claims asserted or intended to be asserted in theoriginal pleadings. [emphasis added] [27] The words “established by this Act” must be read “in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559,at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. [28] This is a transition case that falls under

section 23 of the LAA because the relevant acts occurred before September 1, 2015. There is no limitation period established by the LAA for the purposes of

section 22. Reading those words with the “modern principle” tostatutory

interpretation, I find that

section 23 governs transition cases but does not establish limitation periods; therefore,

section 22 ofthe LAA does not apply to the Applicant’s amended pleadings. [29] I find further support for this

interpretation by reviewing the table of contents for the LAA.

Section 23 falls under thetransitional provisions, consequential amendments and effective date portion and not under the parts dealing with general limitationperiods, exceptions to the general limitation periods, or claims brought after expiry of limitation period. Although not determinative, itdoes provide some guidance as to what was in the mind of the drafters of the legislation. [30] For the foregoing reasons, I would dismiss the Applicant’s motion to amend its Notice of Application in Court. If I amincorrect in my

interpretation that

section 22 is not triggered in these circumstances, I would still dismiss the Application because theApplicant’s new claim of de facto expropriation is not sufficiently “related to the conduct, transaction or events described in the originalpleadings.” [31] The new pleading is much broader. In determining whether to allow the new amendments, “the key is whether the proposedamendments simply elaborate on existing allegations or whether they broaden the scope of the Plaintiff’s claims beyond the parametersof the original pleadings.” (see 513320 Alberta Inc. v. St.

Jean, 2015 ABQB 826, at para. 38, cited in Dyack, supra, at para. 54). [32] Justice Wood (as he then was) in Krishna v. Gauthier, 2018 NSSC 305, considered whether the proposed amendments shouldbe allowed in a personal injury case. In the original claim, the Plaintiff sued the driver and Adecco, their mutual employer, for personalinjuries suffered by the Plaintiff in a motor vehicle accident. The proposed amendments related to “the manner in which Adecco dealt

with her alleged disabilities and their impact on her employment.” (See para. 14). [ 33 ] In refusing the amendments based on CPR 83.11 and

section 22 of the LAA , Justice Wood (as he then was) said at paras. 16 and 17: 16 In this case the material facts supporting the new allegations are not found in the existing pleading, nor could it be said that the amendment merely better describes the cause of action. As a result, neither of these requirements are met and the proposed amendment cannot be authorized under this Rule. 17 For the above reasons I am satisfied that the limitation period has expired in relation to the claims to be included in the proposed amendment.

There is no real connection between the new allegations and the original claim for personal injuries arising out of the motor vehicle accident. Amendment is not available under Rule 83.11(3) . For all of these reasons, the plaintiff's motion for a leave to amend is dismissed. [ 34 ] As mentioned above, I find that the amended pleadings do not meet the requirements of CPR 83.11(3). The new amended pleadings raise new material facts, new statutory schemes, new remedies, new parties, and new land.

The material facts supporting the new claim for de facto expropriation are not found in the original pleading, nor can I find that the amendment merely better describes the original causes of action being trespass and nuisance. Conclusion [ 35 ] The Applicant’s motion to amend its Application in Court is dismissed with costs to the Respondent because the amendments raise a new claim under CPR 83.11 for which the limitation period has expired and there is no basis to allow the claim post-expiry under the LAA . If the parties are unable to agree to costs, I will receive submissions within 30 days of today’s date.

I would ask Counsel for the Respondent to prepare the Order. Bodurtha, J.

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