3021386 Nova Scotia Ltd. Plaintiff v. Municipality of the District of Barrington, a corporation, Tri-County Regional School Board v. Donald G. Harding, 2022 NSSC 174

SUPREME COURT OF Nova Scotia Citation: 3021386 NS Limited v. Harding , 2022 NSSC 174 Date: 20220708 Docket: Hfx. No. 309535 Registry: Halifax Between: 3021386 Nova Scotia Ltd. Plaintiff v. Municipality of the District of Barrington, a corporation, Tri-County Regional School Board -and- Donald G. Harding Defendants Trial Decision Judge: The Honourable Justice Christa M. Brothers Heard: Additional Submissions April 12, 14, 19, 20, 21, 22, June 14, 15, 16, 17 and June 30, 2021, in Halifax, Nova Scotia March 17, 2022 Counsel: Christopher I. Robinson, for the Plaintiff Justin E.

Adams and Bhreagh MacDonald, for the remaining Defendant, Harding By the Court: Overview [ 1 ] This case is about Mr. Kenneth Anthony’s gamble on behalf of the Plaintiff company (I will refer to Mr. Anthony as “Anthony”, and the Plaintiff numbered company as “the Plaintiff”).

The gamble was acquiring a large property at 3752 No. 3 Highway, Barrington Passage, Nova Scotia (“the Property”), at a low cost. [ 2 ] The Municipality of the District of Barrington (“the Municipality”) offered the Property for sale through a Request for Proposal (“RFP”), with the express qualification that no environmental assessment would be provided. The Plaintiff, through Anthony, made an offer of $25,001.00 on an “as is” basis, without any environmental assessments or assurances. These terms were part of an effort to make the Plaintiff’s bid more attractive to the Municipality.

The Municipality had rejected bids, after a previous RFP, one of which had specifically requested environmental due diligence. Anthony’s willingness to forego environmental assurances arguably achieved their purpose, as the Plaintiff’s bid was successful. Anthony was nevertheless able to convince the Municipality to obtain environmental due diligence on the Property. Anthony alone requested and reviewed the environmental reports received through the Municipality.

Anthony alone indicated his satisfaction, on behalf of the Plaintiff, with the quality of that environmental reporting. [ 3 ] After the purchase, the Plaintiff claims it discovered that the soil on the site was contaminated with hydrocarbons. The presence of hydrocarbons was allegedly caused by the earlier presence of underground tanks (UFT’s), for fueling school buses.

A claim for damages was advanced. [ 4 ] Anthony’s gamble, while still a successful business venture for the Plaintiff, resulted in the Plaintiff acquiring a property with unanticipated environmental contamination. [ 5 ] This litigation followed three years later. In 2009, the Plaintiff sued the Municipality and the Tri-County Regional School Board (“the Board”) alleging, inter alia, negligence, breach of contract, breaches of the Petroleum Management Regulations and the

Education Act, and misrepresentations with respect to the future condition of the property. Those initial pleadings made no mention ofthe sole remaining defendant, Donald G. Harding (“Harding”), a lawyer who had acted for both parties to the transaction. [6] Four years later, in 2013, the Plaintiff amended its pleadings to add Harding as a defendant.

The Plaintiff now alleges thatHarding had represented that the Board would deliver the Property in a “clean” state; failed to advise that the Plaintiff undertake a PhaseII environmental assessment; failed to advise the Plaintiff about the impact of an alleged “hold harmless” clause; and failed to advise thePlaintiff with respect to “…the potential for a dispute and conflict to develop…”. It is further alleged that Harding held confidentialdiscussions with the Municipality which were not shared with the Plaintiff. [7] On April 8, 2015, the Plaintiff discontinued its action against the Municipality.

In 2021, the Plaintiff’s claims against theBoard were dismissed on way of

summary judgment by the Nova Scotia Court of Appeal (2021 NSCA 4). [8] While the Municipality and the Board are no longer parties, the substance of this litigation remains unchanged. This litigationis an attempt to shift the blame for the business decision Anthony and the Plaintiff made fourteen years ago when, on Anthony’sinitiative, the Plaintiff acquired the Property without conducting adequate environmental due diligence to identify the later-discoveredcontamination. Background [9] In 2002, the Board decided to close the former Barrington Municipal High School.

The Municipality owned the land on whichthe high school was situated. The Board occupied the Property while the school operated, a span of “about 45 years” until the Propertywas to be returned to the Municipality, according to the RFP. [10] The Municipality issued a RFP on February 1, 2006, for the development of the Property. Two bids were received, includingone submitted by Anthony on behalf of Anthony Properties Ltd, another company he controlled. Neither bid was accepted. A secondRFP was issued in October 2006. The second RFP stated, in

section 2.3, that "[t]he Municipality will not provide any environmentalassessment on this property." [11] On October 30, 2006, Anthony submitted two offers under the second RFP, one on behalf of the Plaintiff company and anotheron behalf of Anthony Properties Ltd. The Anthony Properties offer was accepted. (In the Agreement of Purchase and Sale (“APS”),however, the Plaintiff company was substituted as the purchaser by agreement.) The APS with the Municipality was signed by Anthonyon behalf of the Plaintiff on November 30, 2006. The Board was not a party to the APS.

Harding acted as solicitor for both theMunicipality and the Plaintiff in relation to the APS. [12] The Property was not turned over to the Municipality until January 22, 2007. In the interim, the Board removed oil tanks fromthe Property. The Board provided a soil analysis report from AGAT Laboratories dated February 5, 2007. The acquisition by the Plaintiffclosed on February 16, 2007. [13] The Plaintiff alleges that after it purchased and began developing the Property, hydrocarbon contaminants were discovered,requiring substantial remediation costs.

The Plaintiff’s claim against Harding is in solicitor negligence, negligent misrepresentation, andbreach of a dual retainer. Credibility and Reliability [14] In this case, as in so many others, the assessment of the evidence depends upon findings of credibility. I refer to the statementof O'Halloran, J.A. in Faryna v.

Chorny, (1951), (BC CA), [1952] 2 D.L.R. 354, 1951 CarswellBC 133 (B.C.C.A.): 9 ...the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstancethat the judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elementsin testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole andshown to be in existence at the time... . . . 11 The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.

Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to be telling the truth," is to come to aconclusion on consideration of only half the problem.

In truth it may easily be self-direction of a dangerous kind. 12 The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe thetrial judge with a divine insight into the hearts and minds of the witnesses.

And a court of appeal must be satisfied that the trial judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. [15] In Baker-Warren v. Denault, 2009 NSSC 59, the Forgeron, J. made the following observations about credibility, at para 19(citations omitted): With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses...;

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions...;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [ 16 ] In short, helpful considerations when assessing the credibility of witnesses include attitude and demeanor, prior inconsistent statements, external and internal consistency, motive to mislead, ability to record events in memory, and application of common sense to the evidence to consider whether it suggests the evidence is impossible, improbable, or unlikely. [ 17 ] As I review the evidence, I will provide additional commentary.

I will say at the outset that where Anthony’s evidence conflicts with that of other witnesses, including Harding’s, I prefer the other witnesses’ evidence. As I will discuss in this decision, I found that Anthony’s evidence neither accorded with the documentary evidence nor with other witnesses’ credible evidence. Anthony’s’ shifting recollections, shifting blame, and variety of explanations and excuses does nothing to give the court any confidence in his evidence.

Evidence and Findings of Fact Kenneth Anthony Business acumen and Relationship with Harding [ 18 ] The president of the Plaintiff company testified at length about his background and business as a developer in Barrington Passage, and about his relationship with Harding, who he described as his “best friend.” At the time of this transaction, Anthony estimated Harding had been his lawyer for over ten years, acting for his companies in 70 or more real estate deals. He only used other lawyers if there was a conflict of interest.

Simply put, he said, Harding “had my back.” Harding had offices in Shelbourne and Barrington Passage, and lived near Anthony in Shelburne. Around the time of the purchase, in 2006 to 2007, they met two to four times a week, and talked several times a week. [ 19 ] The closeness of their relationship was one of the few things that Anthony and Harding actually agreed upon in their testimony. [ 20 ] Anthony described the Plaintiff company as a real estate business owning many properties. Anthony was involved with the day to day business, including “finding deals” and maintaining properties.

He did not deal with financing, which was handled by his business partner Steven Lockyer, who did not testify. [ 21 ] Anthony described Steven Stoddart (“Stoddart”), a former Board official, as a good friend, whom he had known for 15 to 20 years. Anthony also said he had known Brian Holland (“Holland”), the Municipal Clerk, for 15 to 20 years. All of this testimony was given to suggest that the closeness of the players in this deal resulted in Anthony relaxing his requirements and being duped into forgoing the usual environmental diligence. I do not accept this, as I will explain in detail later.

Environmental Assurances or Lack Thereof [ 22 ] Anthony said he learned six months before the RFP was circulated that the Property was going to be sold, through “word on the street.” He said he spoke to Harding, Holland, and Stoddart about the Property, with a view to having one of his companies purchase it. He described himself as like a “dog with a bone” in pursuing the Property, though he gave no specifics about these conversations. [ 23 ] Anthony intended to build condominiums on the Property. He testified that potential oil contamination was a major issue for him.

Anthony knew there were gas pumps on the property, used to fuel school buses. He testified that he wanted a clean-up of the property before he would purchase it. He said he told this to Harding at a Tim Horton’s, or at Dan’s Ice-Cream, sometime well before November 20, 2006, in October or November. He said he also inquired as to what would happen if the Board did not clean up the Property.

Anthony testified that Harding told him that the Board would have to pay if there was any pollution, saying “polluter has to pay”. [ 24 ] Anthony said he also spoke to Holland about the Property about three times, concerning the oil tanks and the air quality in the building. There is no documentary evidence to support his evidence of these alleged conversations. Harding and Holland deny that any

such conversations happened. Anthony’s own emails and letters do not support his viva voce evidence about these alleged conversations. [ 25 ] In the face of the other evidence, Anthony insisted that he was given assurances that the Property would be “clean” by Harding and Holland prior to the presentation to the Council. Anthony maintained that these alleged assurances were separate and apart from anything in writing, or any discussions with Council. He insisted that extra-contractual verbal representations were made by Holland and Harding.

I reject this claim given his lack of reliability. [ 26 ] It is also noteworthy that, despite alleging that Harding made such representations, Anthony did not name Harding as a defendant when he started this proceeding, but only referenced assurances by the Municipality and Holland; Anthony said Harding was his “very best friend at the time.” He testified that he knew in 2009, when he started this claim, and when he testified in 2012, that he had received these alleged assurances from Harding. [ 27 ] Anthony said he and Holland spoke on an unknown date before he submitted his proposals, and before the November 14, 2006, meeting, and that Holland gave him assurances at that time.

However, both proposals submitted on behalf of his companies pre-dated November 14, 2006. Anthony was directed to his discovery, where he said he spoke with Harding between November 15 and November 30, 2006. On direct, he was adamant that he had received assurances before November 14, and he maintained that his recollection at trial was better than at discovery. [ 28 ] On discovery, Anthony indicated that the prior assurances were from Holland only. At trial, he said he thought the question was whether anyone else was present, not if others had given assurances.

In the 460 pages of the 2012 discovery, he never mentioned Harding’s alleged assurances. He explained at trial that he was not suing Harding then. On discovery in 2014, he said assurances were given between November 14 and November 30. Finally, at trial, he insisted the assurances were definitely before the October 2006 RFP. There was a myriad of inconsistencies on this point.

Anthony’s evidence has changed and developed over time in what appears to be a response to changing trial strategy. [ 29 ] Anthony agreed that if his discovery evidence was accurate, then any assurances would have been made after the two proposals were submitted, and after Holland’s letter indicating that the Municipality was not providing any environmental assurances.

This evidence is in contrast with paragraph 15 of Anthony’s affidavit of October 15, 2018, where he stated that Harding told him in November 2006 that the Board would return the property “clean” to the Municipality. [ 30 ] Anthony’s version of these alleged discussions is a moving target, not only as to timing but as to location. In his 2014 discovery, he could not say where these conversations occurred. In his direct evidence at trial, he said they happened at Dan’s ice-cream shop or maybe Tim Horton’s. On cross-examination, Anthony said he was guessing, and in fact was not sure where they happened.

The unreliability of this evidence further undermines the claim that any such assurances where made. [ 31 ] As noted earlier, the first RFP did not lead to an agreement, and a second RFP for the development and sale of the Property was issued in October 2006. The new RFP contained the following clause: 2.3 Environmental Assessment The Municipality will not provide any environmental assessment on the property. [ 32 ] Anthony read clause 2.3 of the RFP before submitting a proposal. After speaking to Holland, he understood that no environmental assessment would be provided.

Since he intended to tear down the school building, he was not concerned about its condition. However, Anthony said, he understood that the oil tanks would be dealt with by the Board. [ 33 ] In his evidence, Anthony distinguished the air quality and mold issues in the school building from soil issues on the property. However, this is not a distinction recognized by the RFP, or by any other witness.

Nor did Anthony draw this distinction in conversations or correspondence prior to the purchase and closing. [ 34 ] After reviewing the RFP, Anthony wrote to Holland on October 2, 2006, to confirm that he was interested in purchasing the Property. The letter reads as follow: I am writing you in regards that I understand that there is a meeting this evening in regards to the Old High School. I wanted to reconfirm my position on my offer. I am still very interested although there seems to be a downturn in our local economy.

There also appears to be 8 new apartments under construction and taxes have increased marginally. None of these issues concern my confidence in this project. It is all the more reason why we need development and more businesses here.

I am trying to make this as easy as possible as I am taking most of the risks. 1.Buy property as is, No Phase 1 or other major concerns that could be a Major problem if this is done. 2.I look after tearing down old school, very expensive, I look after cost overruns, permits an [sic] I even put in my proposal if I don’t tear it down by a certain time, then Council can buy the property back from me at half price. I plan on tearing the old school down almost immediately and have no plans of leaving it standing or just sitting on it.

To market this location properly, it needs to come down so people can view the land better. 3. New development creates new jobs, tax base and people staying and buying local. I have the proven track record, the knowledge, the contacts, to bring more jobs and development here. Again, who else has brought companies like McDonalds, Atlantic Superstore, Tim Hortons, Shoppers Drug Mart, Subway, Movie Gallery, Great Canadian Dollar store, etc and the list goes on. It takes a lot of work, money and time I am willing to commit the above to keep Barrington going. We have started losing $$$ again to Yarmouth.

They have attracted new businesses and now it seems local people are doing more shopping there. We have to try and stop this trend and bring

more businesses here and not only keep our people here but again attract Shelburne and Pubnico to shop here. 4. The soccer field would be nice to have but it would be a political minefield. That is why I am not asking for the soccer field and highly recommend for the Municipality to keep it in their hands. It is but better for the community use and makes much more sense politically.

I am available at XXX XXXX cell and XXX XXXX office anytime day or night. [Some content excised] [The foregoing quotation has not been edited for grammatical errors.] [Emphasis Added] [ 35 ] Anthony described this letter as his “sales pitch.” He said he did not think of it as a response to the RFP. Describing his stated willingness to purchase with no Phase I environmental assessment, he said it was “more in regards” to the air quality and asbestos in the school building, and he did not need a Phase I because he intended to demolish the building. I do not accept Anthony’s evidence on this point.

It is obvious given the timing of the letter that this correspondence was in response to the second RFP. This is clear from paragraph one, where Anthony says he will buy the property “as is.” [ 36 ] Anthony wrote again to Council on behalf of his numbered company on October 30, 2006, setting out three options for the purchase of the Property. He confirmed in his testimony that his intention in providing three options was to be the successful bidder. The October 30, 2006, letter stated: Enclosed are our 3 options which is solely at the Municipality of Barrington choice.

Option #1 – Offer $25,000.00 and Annex comes with it once it is in the Municipality of Barrington ownership. This option is for the whole property and I will be taking the old High School down and renovating the new into either condos, apartments, with maybe even some retail at the bottom levels. Option #2 – Offer $50,000.00 with deduction of $2,000 for every full or part time job that is created on that site within 24 months to a balance of 0 of 25 jobs are created. Option #3 – Offer $10,000.00 with the purchaser guaranteeing one of these 3 at the purchasers sole discretion.:

A) A minimal of 24 unit Hotel (motel) commencing construction within 24 months (from when Annex is turned over to purchaser)

B) At least 20 to 35 full time jobs guaranteed within 24 months on this site. This would be a complete new business and not a relocation of an existing one. This could include WalMart, Canadian Tire, Empire Theatres, etc. which would easily surpass 20 jobs.

C) An additional $75,000 to the purchase price, if either (A or

B) is not delivered within the time frame as stated (24 months from when the Annex is turned over to the purchaser) … This project would be a partner deal with myself (Ken Anthony) and Steve Lockyer (Halifax). We together run 3021386 NS Ltd. which is a multi million dollar company dealing in apartments and commercial realastate. Steve is a business person in Halifax who deals in condos having ownership or part ownership in present developments such as The Brewery Market – Halkirk Developments, Lexton Court condos, The Brickyard. He also is president of Cornwallis Financial.

His partnership and contacts on this large project would ensure the success as well as the right mix of commercial tenants. [The foregoing quotation has not been edited for grammatical errors.] [ 37 ] Anthony said the letters of October 2 and October 30, 2006, make no reference to environmental issues because in his mind the only such issue related to the building, which he intended to have demolished.

He believed that the Board would return the Property to the Municipality in a clean state, based on representations he claimed he received from the Municipality and from Harding. [ 38 ] In the letters of October 2006, Anthony was asserting his business acumen. This is contradictory to his attempts at trial to describe himself as an uneducated man reliant on all of those around him. I do not accept his attempts to depict himself as an unsophisticated person who was duped in this process.

He has demonstrated he was far from a neophyte in the bidding and development process. [ 39 ] Anthony testified that Council accepted option 1. On November 14, 2006, he wrote to Council, to confirm the purchase of the “old high school”, enclosing a cheque for $25,000. He wrote: Thank you for the recent motion in regards to the purchase of the Old High School. I am looking very much forward to do this project and am anxious to proceed immediately. I have enclosed a copy of the cheque I issued (in trust to Don Harding) for the amount of $25,000.00.

I have also enclosed a copy of my insurance starting tomorrow so I will take over full responsibility of liability and normal insurance coverage. The demolition permit has been paid and applied for and will be issued only after Council approves the sale. This demolition permit can be confirmed by Mr. Holland. I am asking Council for the following misc items:

1. Power be shut off immediately for the Junior High so we can tear it down commencing this Monday morning. 2. Within approximately 3 months, a letter from Jacques Whitford stating the oil tanks have been removed and it is acceptable, no contamination . The Old Annex building, I would expect to be turned over in approximately 3 months and my plans are again to tear it down immediately when passed over. 3. Approval to commence demolition and renovations immediately. I want the old Junior High down by Dec. 1 st /06.

I also want to get aerial photos with the building down before snow falls which his why I am in a rush to start marketing. 4. Council to allow work on condo bylaws that would make it acceptable for at least 12 condos be hooked up on 1 sewer system. I know that 12 units would be owned by each individual condo owner and from there go in a common area sewer line owned by the Condo corporation and then in the Municipal sewer system. There are no condo bylaws and I am obviously starting to commence on a demo site ASAP for viewing for sometime in January/07. 5.

The lawyer Don Harding can look after both sides on this land transaction. Geomap is starting surveying on Monday. Most of the property has been surveyed but a new line approximately 25 feet from the soccer filed parking lot will have to be surveyed as shown. 6. I understand the Chamber will be using the site Dec. 2 nd and I am ore than happy to work with them and have a heated room available as well for that evening. [The foregoing quotation has not been edited for grammatical errors.] [Emphasis added] [ 40 ] Anthony testified that at the time of this letter he believed that Harding was representing him.

He said he had never bought property without environmental assurances from the vendor. The November 14 letter makes the first reference to an environmental assurance, in the nature of a “Jacques Whitford” letter, with specific mention of oil tank removal. There is no reference to prior assurances from Holland or Harding.

Having submitted a proposal with no assurances offered or requested, Anthony now sought a “Jacques Whitford” letter or assurance. (Jacques Whitford is an engineering and consulting company whose services include environmental assessment.) [ 41 ] On November 15, 2006, Holland emailed Harding indicating acceptance by the Municipality of the Anthony Properties proposal: Last night Council agreed to accept the proposal on Anthony Properties Ltd for the purchase of the former BMHS property. Please provide an Agreement of Sale for the property that will include the following: 1. Sale price $ 25,001. 2.

Purchaser responsible for survey and title migration costs. 3. Description is contained in the RFP document and will be confirmed by the survey. 4. The Annex property will be included in the sale and transferred together with the rest of the property as soon as it is available from the School Board. Also, Council approved Mr. Anthony’s request for permission to begin demolition of the old “junior high school” portion of the buildings right away.

Thyank you, Brian [The foregoing quotation has not been edited for grammatical errors.] [ 42 ] Prior to this email there are no documents indicating Harding was involved in the transaction. The evidence indicates that Harding was not involved in this negotiation or in the formation of the agreement until Holland asked him to prepare the APS. Harding forwarded Holland’s email to Anthony on November 20, 2006, with the question, “Anything else you wanted in there?” Anthony testified that in response, he wrote, by hand, a fifth item on a printout of the email as follows: 5.

Letters from Jacques Whitford the land is clean and up to environmental standards. Close Jan 22/06 [ 43 ] Anthony testified that he delivered the printed-out email, with his additional notation, to the front desk at Harding’s office, on November 20, 2006. Anthony testified that he wanted to make sure the land was contamination-free despite his response to the RFP expressly indicating that there would be no environmental assessment provided by the Municipality.

He testified that he never discussed this with Harding, then or later. [ 44 ] On November 15, 2006, Darryl Wilson, who worked for the insurance company Bell and Grant had emailed Holland and others, ostensibly to suggest the Municipality include certain requirements in the APS. [ 45 ] Mr. Wilson’s email included suggestions to Holland concerning the contents of the APS:

I offer my thoughts pending Cowan’s feedback. The Municipality should have its solicitor structure a formal written legal agreement with Mr. Anthony surrounding planned activities in and around the District’s property/building prior to the formal transfer of the property/remaining building to Mr. Anthony. The agreement should contain an indemnification/hold harmless clause in favor of the District. As well, the agreement should have an insurance clause outlining the minimum types and amounts of coverage (as set out by the District and its solicitor) to be carried out not only by Mr.

Anthony but also any contractors (including R T Excavating) performing operations on the site on his behalf. Insurance outlined in the agreement as required should not only include general liability (with removal/weakening of support inclusions removed ), non-owned auto liability, and auto liability, but depending on exposures present, should also include asbestos/lead abatement liability, and environmental liability. The agreement should require that the district be shown as Additional Insured on policies where permitted. As well, the District should consider having the agreement require Mr.

Anthony to carry Builders Risk coverage on the building including the District’s interest in the event he or his contractor were to damage the portion of the building to remain standing.

As an aside, the District should require the School Board to supply documentation evidencing no contamination on the site prior to the property reverting to the District – this may have already been done – especially where the School Board have been conducting fueling operations there. [The foregoing quotation has not been edited for grammatical errors.] [ 46 ] In a subsequent email to Harding, on November 20, 2006, Holland provided him with the insurer’s comments: We have been advised by the insurance company to include certain requirements in the Agreement of Sale to Anthony Properties Ltd.

Please review their comments attached, and include the requirements you believe necessary. Also attached is a copy of the insurance certificate received from R&T excavating Ltd. They are the company doing the demolition of the old junior high school. [The foregoing quotation has not been edited for grammatical errors.] [ 47 ] Anthony indicated at trial that he did not see Mr. Wilson’s email until discovery.

Asked if he was certain of this, he said, “120% fact not an opinion.” He then laughed and said “sorry.” This was a sarcastic response after receiving the court’s decision about the refusal of the expert opinion from Mr. Finley. I will address this email and the fact Anthony did not review it later in this decision. This is not the only example of Anthony’s sarcastic approach to his testimony.

Anthony noted in his testimony that he addressed a letter to Harding, “Dear Don (Q.C.)”, volunteering that Q.C. meant “Quite Costly.” There were many interjections of this kind by Anthony during his direct and cross-examination, giving the impression that he was not taking the proceeding seriously. [ 48 ] On November 21, 2006, Anthony wrote to Holland. Amongst other issues, he raised the matter of the tanks: I do have a few questions though, in which I was assured the tank was empty. Please re confirm that Steven Stoddart has had the tank emptied and without any oil, gas, etc as Steve was supposed to have stated.

I believe then there should be no issues. I trust that Steve S and the School Board have started the environment concerns and commencing to get Jacques Whitford in as promised. I was also going to ask when the 3 months or closing up the Annex would taking place. I am in no major rush but it would for development purposes be nice to have the Old Annex out of the way. We will be continuing to tear down the old School tomorrow morning as well as commencing on the model suite in the Senior High.

We will be staying away from the tank until the School Board completes there work and making sure it is up to Environmental regulations. Please keep me posted and I will call Steve early Tuesday morning. All the best, and again, We will not be doing any digging into the ground or going over the site where there is a tank. regards kb [The foregoing quotation has not been edited for grammatical errors contained in the original.] [ 49 ] Anthony confirmed that he sent this email to ensure that the Board was going to clean up any contamination and obtain a “Jacques Whitford” report.

Parenthetically, it was Anthony personally following up about environmental concerns. It is noteworthy that he was not doing this through Harding, who by his own evidence, he understood to be his lawyer, and who, he testified, he expected to handle matters of this kind. The implication is that he in fact understood Harding’s role to be limited, or, at the least that he did not seek Harding’s advice on the environmental issue.

It is also noteworthy that Anthony’s representations and agreements in the proposal were different than after the Plaintiff’s successful bid; he first agreed to an “as is” sale, then began demanding Jacques Whitford reports and environmental assurances after acceptance of his successful bid. [ 50 ] Anthony began work on the Property in November 2006. He fenced off an area and started moving in surveyors, excavators, and electricians by November 14. At that point, there was no APS signed yet, and he did not yet own the property.

However, Anthony said, he had “assurances” and was prepared to demolish the school, in order to avoid tax implications by finishing demolition by December 1. This is before Harding was even asked to prepare the APS on November 15, 2006. This is another example of Anthony forging ahead and not seeking legal advice. [ 51 ] On November 21, 2006, at 8:43 a.m., Holland emailed Stoddart about the situation on the Property. The message was cc’d to Anthony: Mr. Anthony has been informed of your concerns and has told me he will call you this morning.

At the present time he is demolishing the old Junior High School and removing the debris from the site. He will also be starting construction of a “model suite” in the Senior High School.

He will not be demolishing or constructing anything near the oil tanks in the Annex or the Senior High School. The demolition will not affect the area around the oil tank behind the Junior High School as that tank has been fenced off so the machinery will not intrude on it. In any case you informed me by email on November 1, 2006 that the oil tank behind the Junior High School had been pumped out, so there can be no contamination from it. Nevertheless, the sooner it is removed and the letter from Jacques Whitford is provided, the better. Thank you for your cooperation in this endeavour.

Brian [The foregoing quotation has not been edited for grammatical errors.] [ 52 ] Anthony said he understood this was Holland following up on Anthony’s earlier email setting out his expectations of the Board. Anthony forwarded the email to Harding on December 1, 2006. [ 53 ] Anthony sent an email to John Hogg (“Hogg”), at the Board on November 30, 2006, in regard to the proposed rental of the annex building, on the Property by the Board.

In that email, Anthony referred to the oil tanks: The School Board is responsible for taking out the in-ground oil tank where the buses gas up and solely responsible for the clean-up and a letter from Jacques Whitford were acceptable qualified company saying it is environmentally clean. I will then allow the tank to stay there until the end of this lease and therefore the Board doesn’t have to remove it within the next 60 days as planned or promised.

Therefore, I will be proposing “purchasing” the property prior to the tank removal but guarantee from the Mun. of Barrington and the School Board and it will be cleaned up prior to vacating the premise. [ 54 ] Anthony also forwarded this email to Holland on December 5, 2006, but neither copied nor forwarded it to Harding. Anthony said he was writing to those individuals to ensure the property was clean before being passed to the Municipality. Anthony did not receive a reply to the email.

In referencing the lack of response, he said “sooner or later silence becomes betrayal.” There is no documentation or correspondence to support Anthony’s stated belief that the property was going to be “clean.” In fact, his emails after the fact show he had a concern about oil tanks, and knew it was the Board he had to discuss this with.

He was again taking the lead and not involving Harding. [ 55 ] Anthony received an email from Stoddart, copied to Hogg and Phil Landry, on December 6, 2006, in which Stoddart spoke about turning the Property back over to the Municipality, with a tentative date for the transfer on or before January 22, 2007. Anthony said he had assumed the Board owned the property, but learned from Harding that the Board was transferring it back to the Municipality.

Anthony received an email from Stoddart apparently replying to Holland: Hi Brian I just wanted to clarify that I will be communicating with you until the property is returned to the Municipality. Please see Ken’s email below. Thanks Steven Stoddart Director of Operations, Tri-County Regional School Board… [ 56 ] This email was apparently sent to Anthony in error, being intended for Holland at the Municipality. [ 57 ] The state of relations between Anthony, the Municipality, and the Board during the winter of 2006-2007 is illustrated by an exchange of correspondence on January 22, 2007.

Stoddart had forwarded Holland the following letter, respecting the hand over of the Property: Dear Mr. Holland: We have removed the diesel pump and tank from the property. Everything appears to be okay and soil samples have been taken and sent to the lab for analysis. I am prepared to turn the property over to the Municipality today, January 22, 2007, under the following condition: I need to have use of the old board office until the end of February 2007. I will have the power and oil disconnected on or before that date.

I require the use of the facility as it is taking some time to get the phone lines connected at our new location and we still have material in the building we need to remove. I hope this meets with your satisfaction. [The foregoing quotations has not been edited for grammatical errors.]

[ 58 ] Holland forwarded Stoddart’s letter to Anthony with the query, “[d]oes this cause any problems.” Anthony replied: Dear Brian, Thanks for your comments on the drawings. In regards to Steve S. letter, I find the environment to be very weak. I need better assurances and more paperwork then, …it is being reviewed and everything appears to be OK. Please confirm how long the soil samples will be back clean of any environmentally concerns.

As for the end of Feb/07, I had originally planned on taking the Annex building down by the end of Jan/07 for development purposes and using the main entrance doors on the Senior High. Are they prepared to pay any rent as the last time, I talked to John Hogg, rent was going to be $600.00 plus HST per month if they needed it. Please review and let me know as again, I expected the land to be available by Jan. 22nd/07 and clean with proper paperwork that eliminated any Environmental concerns.

Best regards KB Anthony [Emphasis Added] [ 59 ] The following exchange of emails ensued: From: Brian Holland To: Ken Anthony Sent: Monday, January 22, 2007 1:58 PM Subject: Former BMHS Property Steve Stoddart just called regarding the old high school. He says he cannot deal with a “third party” and must deal with the Municipality. He wants to have the closing postponed to February 2 nd , He believes he can get everything out by then and the phones changed over to the their new location. He will have the paperwork on the oil tanks by February 1 st . As soon as I receive it, I will copy it to you.

If this is satisfactory we will aim for that date. Brian … From: Ken Anthony To: Brian Holland Sent: Monday, January 22, 2007 2:35 PM Subject: Re: Former BMHS Property Thanks makes more sense, let’s hold off until Feb. 1 st and keep it easy and clean. No problem here as long as he has the proper paperwork on the oil tanks. Will he have the above ground oil tank for the Annex gone?

Thanks KB … [ 60 ] Anthony testified that when he emailed Holland on January 22 at 1:38 p.m. indicating that he found the “environment to be very weak,” he was referring to the fact that soil samples were being delivered to the lab for analysis, and that this was not the type of report he wanted. He said he wanted “zero environmental concerns,” meaning no oil tanks. By contrast, by “environmental issues” he meant the air quality of the buildings. As of January 22, 2007, he said, he expected something in the nature of a Jacques Whitford report.

However, this was never made explicit in the above communication and is in contrast to the express terms of the RFP. The issue of environmental assurances now became a moving target over the following months and years, as shown in emails and Anthony’s testimony.

He began by bidding on an RFP with no environmental assurances and accepting “all the risk” to demanding escape clauses in the APS and letters of comfort all while “getting a steal of a deal.” [ 61 ] Anthony emailed Holland on January 29, 2007, at 10:45 a.m. inquiring “how are we doing on the environment?” Holland responded on January 30 at 8:58 a.m., indicating that Stoddart had promised to have the documentation on February 1, 2007. Anthony responded at 9:36 a.m. that “the only outstanding issue is the Environment concerns which I would like proper paperwork.

You can understand any lender would obviously want this as well.” This is one of the only emails on the topic copied to Harding, and the first time he mentions a lender in the face of a $25,000 deal. [ 62 ] On February 1, 2007, at 8:25 a.m., Holland emailed Anthony directly. Harding was not copied on this email, which stated: Sorry I didn’t reply sooner.

Since the environmental information will not be available until today it appears we have no choice but to delay the date of sale. Friday, February 16, would be an acceptable closing date. As soon as the environmental information is received it will be forwarded to you. Regards, Brian [ 63 ] Anthony copied Harding on this exchange. Anthony said his references to paperwork meant a Jacques Whitford letter confirming that there was no oil contamination, but that was not specifically stipulated in the email.

Anthony never received a report from Jacques Whitford, but did receive an AGAT Laboratories report addressed to the Board on February 5, 2007. Based on this report, Anthony concluded that there was no concern from three oil tanks located at the annex building, the senior high, and the junior high, respectively. AGAT Laboratories did not find any hydro-carbon contamination detectable in the 12 samples they received. Anthony testified that he still expected a Jacques Whitford letter respecting the entire Property to follow, though he did not tell anyone this.

He instructed Harding to close. [ 64 ] Parenthetically, Anthony’s testimony appears to be contrived and crafted in this regard. The APS includes no requirement for a letter from Jacques Whitford indicating that the entire Property was free of any contamination. What it does allow is a dissatisfied Anthony to walk from the deal. Anthony received the AGAT report and then instructed Harding to close the deal. Anthony could have refused to close, but did not. Throughout the negotiations, however, Anthony made statements in emails, letters, and proposals indicating that he would assume all the risk in the transaction.

While Anthony claimed that he relied exclusively on his lawyer, and that he was not familiar with legal requirements, the evidence also indicates he was an experienced real estate developer, who was comfortable communicating directly with a variety of actors connected to this deal, usually without copying his lawyer, and certainly not seeking legal advice. He also had an APS which he admitted he did not read through. It is puzzling how someone with his real estate portfolio would treat an APS in such a casual manner. Furthermore, the evidence is clear that Anthony did not rely on Harding for environmental advice.

Harding was not an expert in that area, nor did Anthony think he was. [ 65 ] It was put to Anthony that he closed the property transaction without receiving a Jacques Whitford letter; he responded that he did not have any real concerns, and he did not follow-up, “so my bad on that.” Exactly! As I will explain further, I do not accept his attempts to rewrite history and foist his decisions to purchase a property “as is’ on to his lawyer when all other attempts at redistributing the liability have failed. Environmental Knowledge [ 66 ] Anthony conceded that he was aware of at least three tanks on site.

He also knew the Property was actively used as a fueling station for buses. He denied being concerned about the risk of contamination, however, saying “no, not really,” because he understood the Board was giving over the Property, and it would be “clean”. Again, he attempted to explain his concern about environmental issues as being only in relation to the buildings, and not the soil, as he says he was given assurances.

Absolutely no other witness or documents support these alleged assurances. [ 67 ] The evidence indicates that Anthony had access to information that could have put him on notice of potential contamination concerns. On August 30, 2000, Jacques Whitford was retained by another company of Anthony’s, K&J Anthony Properties Limited, to conduct a Phase I environmental site assessment of properties at 3723 and 3737, Hwy No. 3, Barrington Passage. The executive

summary of the assessment included the following relevant portions: Between August 8 and 14, 2000, Jacques Whitford Environmental Limited (JWEL) conducted a Phase I environmental site assessment (ESA) of the properties and buildings located at 3723 and 3737, Hwy no. 3, Barrington Passage, Nova Scotia. Based on the information gathered and on observations made during this investigation, the Phase ESA revealed evidence of potential contamination.

Potential contamination is based on the following: Potential on-site migration of petroleum hydro-carbons from former/existing underground tanks on adjoining properties to the North (Barrington Municipal High School Board Office) and West (T.L. Swaine Ltd.). To address potential contamination, we recommend the following: Conduct a Phase II ESA to investigate the potential on-site migration of petroleum hydro-carbons from off-site sources. [ 68 ] Anthony agreed that he understood that the references to adjoining properties included the Property.

It was put to Anthony that if these risks existed in 2000, there would be similar risks with regard to the Property in 2006. He confirmed that he knew there were oil tanks on the site, but as to the reference to former and existing underground tanks on the adjoining properties, he said, “I never picked up on that.” Again, this is not credible evidence. This is in contradiction to his “hands” on approach to his business dealings.

In any event, Anthony alone had this information; not Harding. [ 69 ] The next page of the 2000 Jacques Whitford report summarized the findings and conclusions, and noted that adjoining properties were potential sources of contamination. The level of environmental contamination and concerns were said to be moderate. In the “findings” section, it stated: “Former/existing underground tanks on the adjoining properties to the North (Barrington Municipal High School, School Board Office ) and West (T.L.

Swaine Ltd.) represent potential sources of petroleum hydro-carbons which may have impacted the subject properties”. [ 70 ] In fact, the number of oil tanks on the Property is noted at page seven of the report: Barrington Municipal High School (adjoining property to the north)

Five tanks are registered to this property. Two of the tanks are listed as “removed” and were reportedly underground tanks. The three remaining tanks included two underground tanks and one above ground tank, which are listed as “currently in use”. The former/existing underground tanks on this property are considered upgradient to the subject properties and represent a potential environmental concern. [ 71 ] Anthony said it was unlikely that he read this part of the report, since his “normal practice” was to read only the executive

summary. He would have the court accept that his “normal practice” was to skim reports and legal documents. If this is the case, this is foolhardy; if not, his evidence was neither credible or reliable. Either way, he had the information, and was the only party who did. Harding did not. [ 72 ] Attached to the August 2000 Jacques Whitford report was a print-out dated January 3, 1996, showing the petroleum storage tank registration. This document indicates that two underground tanks had been removed, having been installed in 1956 and 1968.

Two other tanks were still in place, installed in 1983 and 1991, and another was underground, installed in 1989. This suggested that the Property had held five tanks, two of which had been removed by 1996. After receiving this report in 2000, Anthony obtained a Phase II report. [ 73 ] Anthony agreed that in his second proposal, dated October 2, 2006, he had proposed to buy the Property “ ‘as is’, No Phase I or other major concerns that could be a Major problem if this is done.” Anthony acknowledged that “as is” meant that he would accept the Property in the condition that it was in.

He added the proviso, however, that he accepted this because he expected reassurances in regards to the tanks beforehand. [ 74 ] Anthony acknowledged that, in saying that he would not require a Phase I, he was obviously indicating that he would also not require a Phase II. He did not agree, however, that it followed that any problems that arose on the Property after closing would have been his to deal with. He maintained that he expected a Jacques Whitford letter confirming the property was “clean.” However, he admitted that there was no reference to a Jacques Whitford letter in the October 2, 2006, proposal.

Anthony nevertheless claimed that Holland told him that any tanks on the Property would be removed and the Property would be “clean.” Holland denied making any such statement. Where Holland’s evidence differs with Anthony’s, I accept Holland’s. There is no other evidence supporting Anthony’s claims. Further, his conduct before the deal belies this assertion. [ 75 ] As described earlier, Anthony responded to the original February 2006 RFP. The Municipality rejected his proposal of October 2, 2006, by letter from Holland dated October 10: Dear Mr. Anthony: RE: FORMER B.M.H.S.

PROPERTY PROPOSALS After much research Council has reviewed the proposals received on this property and has decided not to accept the proposals. Because of the strong sentiment expressed by the community, it is necessary that the Municipality retain the track and field property at the western end of the former Barrington Municipal High School. As a result this property will not be sold. Also, it has taken some time for the Municipality to obtain agreement from the Tri-County Regional School Board for the return of the Annex property at the eastern end of the school.

The School Board has now agreed to return this property and this property will be sold by the Municipality as part of the former B.M.H.S. property. Also, the Municipality has investigated requirements for environmental assessments. As a result Council has determined that the Municipality will not complete any environmental assessments on the property. As a result of the information obtained and the change in circumstance, the Municipality will not be accepting your proposal that has been previously submitted on the property.

The Municipality will be re-advertising the sale of this property in the very near future and will again be seeking proposals on the specific property that is now available for sale. Thank you for your time and consideration in this matter. It is much appreciated. [ 76 ] Importantly, the following paragraph deserves particular emphasis: Also, the Municipality has investigated requirements for environmental assessments. As a result, Council has determined that the Municipality will not complete any environmental assessment on the property. [Emphasis Added] [ 77 ] Anthony received this letter.

On October 12, 2006, Holland wrote to advise him of a further RFP on the Property. As noted earlier, the October 2006 RFP stated, at

section 2.3: 2.3 . Environmental Assessment The Municipality will not provide any environmental assessment on the property. [ 78 ] This statement did not appear in the first RFP. Anthony acknowledged in his testimony that this problem was not a surprise to him. It was clear that the other contracting party, the Municipality, was not providing environmental assurances. Nevertheless, he submitted a proposal on October 30.

RFP and Knowledge Prior to Retention of Harding [ 79 ] As has been described, the genesis of the APS was an RFP process initiated by the Municipality. I have described Anthony’s evidence that he thought the Board owned the Property. While he purported not to recall the contents of the February RFP, he agreed that

section 1.1 clearly indicated that the Property was owned by the Municipality, and that the Board would return the Property to the Municipality in early 2006. He agreed that it was clear from the RFP that it was the Municipality seeking the proposals. [ 80 ] While he said he did not recall the contents of his response to the first RFP, Anthony was referred to an undated offer by Anthony Properties of $25,000 which he acknowledged was his response.

He said the figure of $25,000, was based on his expectation of the cost of tearing down the old school, as well as “taxes, costs overruns, environmental, etc.” He said that by “environmental” he meant the building, not soil issues. He agreed that this distinction was not specified in the bid, and that he neither sought nor received any advice from Harding before he submitted the proposal. [ 81 ] Although he claimed not to recall, Anthony apparently met with Council after submitting the original proposal, judging by an invitation from Holland dated May 25, 2006.

The proposals from the first RFP were evaluated by Holland in a memorandum dated August 2006. East Bay Realty, unlike Anthony Properties, indicated that the Municipality would be responsible for providing a satisfactory environmental assessment and appraisal. Anthony Properties, by contrast, indicated “no environmental assessment or evaluation required.” [ 82 ] Anthony claimed to recall the second RFP, though not the first.

There is a big difference: the second bid indicated that the property was “as is.” This is another example of his selective memory and his tendency to tailor evidence regarding his stated assumption of risk. As has been noted, he denied recall of many events, and denied reading materials which would be unhelpful to his case. Retention of Harding [ 83 ] Harding was approached by both Anthony and the Municipality to represent them concerning the transaction of this property.

Harding wrote to Anthony on November 22, 2006, setting out the conditions of his dual retainer: I have recently discussed with you acting for you in the proposed purchase of certain real estate as noted above. Subsequent to our conversation I have also been requested by the Vendors to act on their behalf in the transaction. A solicitor may so act for both parties if both parties consent and the lawyer advises as follows:

a) that the lawyer intends to act in the matter not only for that client or prospective client but also for one or more clients or prospective clients;

b) that no information received from one client respecting the matter may be treated as confidential with respect to any of the others;

c) that if a dispute develops in the matter that cannot be resolved, the lawyer cannot continue to act for any of the clients and has a duty to withdraw from the matter, unless they agree, preferably in writing, before the lawyer begins to act, that the lawyer may continue to act for one of them even if a dispute develops in the matter. Although we do not anticipate that a conflict will arise in this transaction should one arise it will then be necessary for our firm to withdraw entirely from the matter, and refer both parties to separate solicitors.

If you are in agreement with this, kindly sign and return a copy of this letter signifying consent thereto. A similar consent is being obtained from the Vendors. Please give me a call if you wish to discuss this matter further. [ 84 ] Anthony confirmed that he recognized the letter, and his signature on it, though he could not confirm the date. He said he signed the letter because Harding asked him to, but did not discuss the document with Harding.

Once again, I found this claim not to read documents to be a crafted response intended to disassociate himself from any responsibility. [ 85 ] Anthony testified that Harding never explained the implications of his role as a lawyer acting for both parties. He said Harding never told him that he was not going to be giving advice and would only put the agreement into written form. However, it is clear from the evidence that Anthony never retained Harding, nor did he seek his advice prior to bidding on the two RFPs. [ 86 ] Harding addressed the dual retainer in his affidavit dated October 5, 2018: 57.

I had no involvement in the offer, negotiation, or acceptance of the terms of purchase and sale, which had been agreed to between the parties. I did not provide any advice to either party about what should or should not be included in their agreement nor did I provide advice as to the benefits or risks associated with any terms they instructed me to include. … 60. Because of my dual retainer on behalf of 386 NSL and the Municipality, I did not give advice to either party concerning the form or content of the Agreement of Purchase and Sale (“APS”) or steps they might respectively take to protect their positions.

My role was to reduce the terms of the accepted offer to written form. [ 87 ] There is no apparent dispute that Harding did not negotiate the deal, but did reduce its terms to writing. More will be said about Harding’s role. I do not accept, however, that he was simply a scribe for the parties.

But, it is clear on the face of the various communications that Anthony had direct contact with Holland and others, and did not involve Harding, or even inform him of the discussions leading up to the acceptance of the Plaintiff’s bid. [ 88 ] Anthony signed the APS as President of the Plaintiff company on November 30, 2006. Anthony said he retrieved the APS from Harding’s office and returned it after signing. He and Harding never discussed its contents. He also testified that he did not read

the document, but merely “perused” it and signed it. The school demolition had already been completed when the APS was signed on November 30. [ 89 ] Harding’s evidence does not correspond to Anthony’s recollection. Harding said they did discuss the APS. As to the communications between signing and closing, Harding’s affidavit states, at para. 69: Between the signing of the APS and closing, Anthony, Stoddard and Holland communicated directly among themselves concerning any issues arising on the transaction.

I was not involved in those communications and, typically, was not copied on written correspondence. [ 90 ] As discussed earlier, Harding sought Anthony’s input into the APS by e-mail. Anthony’s handwritten note on the printed out email to Harding demanding a letter from Jacques Whitford concerning the oil tanks, and requiring that everything be up to environmental standards, is not reflected explicitly in the APS. However, clause 9 permitted the Plaintiff to refuse to close if environmental information provided was unsatisfactory: 9.

The Vendor makes no representations about the condition of the property but agrees to obtain from the School Board and/or their consultants an opinion as to the removal tanks and the condition of the property being satisfactory to the Purchaser. [ 91 ] Anthony denied reading clause 9. [ 92 ] Clause 12 of the APS dealt with insurance. It stated: 12.

The Purchaser agrees to provide the Vendor with such proof of insurance as required by the Vendor with respect the Purchaser and its agents use and demolition of the property prior to the Purchaser commencing work or taking possession of the premises. [ 93 ] This clause was not referenced in any communication between Anthony and Holland respecting the APS. However, Anthony said Holland had indicated that he must insure the Property before the school was demolished. Harding did not speak to Anthony about clause 12. As noted earlier, the school was already demolished by the time the APS was signed.

Anthony was taking steps immediately after his bid was successful to work on the Property. He was focused and determined. [ 94 ] Anthony denied being informed that Harding’s dual retainer was limited to the conveyancing aspects of the property transaction.

He denied Harding’s evidence that he did not discuss simple legal concepts with Anthony, although he could not say what was meant by a “simple legal concept.” Anthony also testified that he spoke to Harding about Phases I and II environmental assessments, but this evidence was vague, in that he said he would discuss these issues in terms of incorporating them into an APS so that he was “solid on paper” and “along these lines.” [ 95 ] With his experience in residential and commercial developing, Anthony acknowledged he understood that in order to have terms included in the APS, he would have to advise his lawyer.

He acknowledged that Harding would not prepare an APS based on his own knowledge, but based on information Anthony would provide to him. Anthony also acknowledged that he had drafted agreements himself in the past. Anthony acknowledged that an APS was a significant document, whose preparation included aspects of due diligence, financing, inspection, and insurance. He agreed that due diligence included such things as septic and environmental testing, and that environmental testing included soil and hydro-carbons.

He understood that a Phase I report included document review and ascertaining if there was a possibility of contamination, but not digging in the soil, which would be a Phase II matter. [ 96 ] Anthony admitted on cross-examination that he handled environmental concerns, not Harding. When he had questions about the environmental condition of a property, he would look to consultants such as Ecco or Jacques Whitford.

This was illustrated by his review of a previous closing, where he did not involve Harding in these aspects of the deal. [ 97 ] Despite all this, Anthony alleges that Harding failed to recommend that he obtain a Phase II for the subject property. He agreed that his expectation was premised on Harding having a role in that aspect of the Property deal. He agreed there was no documentary evidence supporting any such reliance on Harding.

Despite lack of evidence that he had ever consulted Harding regarding environmental assessments, however, he mentioned that if there were any red flags in environmental reports, he would do so. Beyond this bare assertion, there was no evidence of this. For instance, when Anthony initially said that he found “the environment to be weak” in early 2007, he did not consult Harding. After extensive cross-examination, it was clear that Anthony had experience with environmental reports. He agreed Harding was not an environmental expert.

The Plaintiff’s assertions about Harding providing environmental assessment advice is not supported by his own evidence, and is in direct contrast to Harding’s own viva voce and affidavit evidence. He ultimately agreed he could not point to a time where he looked to Harding to give him advice on environmental assessments.

It is clear that Anthony dealt with such matters himself, although as has been noted, he claimed not to read beyond executive summaries. [ 98 ] Anthony acknowledged that he understood (without being advised by Harding) that if he was not satisfied with regards to due diligence, he would lose his deposit. Anthony also knew that everything had to be completed for the closing date, because after closing, any issue that arose was at his risk. He understood that the concept of “buyer beware”.

The RFP was clear that the property was being sold “as is.” [ 99 ] Anthony swore an affidavit on October 15, 2018, in support of his opposition to a

Summary Judgment Motion. At paragraph 77 he stated: And the Property transaction is a perfect example of a circumstance where Harding’s advice was critical. Had Harding advised me that the Board was not going to be providing the Muni with any assurances regarding the environmental cleanliness of the whole Property, I would then have been able to use my due diligence knowledge and been able to demand a Phase I or Phase II assessment be provided to me by the Board prior to the closing of the purchase. But I was never advised by Harding that the Muni wasn’t going to be getting what he had earlier told me they would be getting.

[ 100 ] This flies in the face of Anthony’s own evidence that he did not rely on Harding and that Holland gave him direct assurances. Anthony’s affidavit evidence and trial testimony is a veritable cornucopia of unsupported claims, contradictions, and inconsistences. [ 101 ] Evidence of previous transactions demonstrates that Anthony would obtain environmental reports of his own accord when he judged it necessary.

Five years prior to this transaction, Anthony was president of 3021386 NS Ltd., which was involved in a potential purchase of the former Mabel’s Fruit and Vegetable Stand property on Highway 303, in Conway. The property had been a former Irving service station, and a preliminary environmental assessment by ECCO was performed at Anthony’s request, recommending a Phase II report. In reading this correspondence, Anthony acknowledged that red flags were raised because there was no conclusive evidence that the petroleum had been removed.

The preliminary report indicated that the costs of an investigation could be between $10,000 and $100,000, or more for remediation. As a result of this information, Anthony decided not to go forward with the purchase. This is but one example of several that were referenced in the evidence of a prior potential development where Anthony dealt with environmental concerns, on his own with no reliance on Harding. [ 102 ] Anthony’s evidence of how matters proceeded in respect of the second RFP raise concerns about credibility and reliability.

As noted earlier, Anthony submitted proposals on behalf of both a numbered company and Anthony Properties, on October 30, 2006. Contrary to his initial recollection, it emerged from reference to Council records on his cross-examination that it was, in fact, his proposal of the same date on behalf of Anthony Properties Limited (not the numbered company) which was accepted. The fact that he could not correctly recall which offer letter was accepted until he was cross-examined impacts my assessment of the reliability of his evidence.

This is just one of many instances where his recollection is faulty. [ 103 ] Anthony emailed Holland on November 8, 2006, indicating that he was moving forward with inspecting the site and meeting with insurance representatives, among other matters respecting the Property, even before Council had accepted his offer, and requesting that Council move up its meeting because he was leaving for Halifax later that day. He also indicated that he knew that Harding was representing the Municipality. Harding had told him to get the approval of the Municipality for him to represent Anthony as well.

However, the amended Notice of Action and Statement of Claim states: Mr. Anthony was subsequently informed by Mr. Harding that he would also be representing the Municipality with respect to the sale of the Subject Property. [ 104 ] The fact is that Anthony knew that Harding was representing the Municipality, and he also wanted Harding to represent him if Council agreed.

As noted earlier, on November 14, 2006, after Anthony’s RFP was accepted, he wrote to Council requesting, inter alia , a “letter from Jacques Whitford.” In the same letter, he wrote, “The lawyer Don Harding can look after both sides in “this land transaction.” Anthony testified that he did not consult with Harding before sending this letter, or while preparing it. Anthony knew there were oil tanks on the site. Initially, Anthony did not believe that he spoke at or attended the Council meeting. However, he was referred to the following Council minutes from the regular meeting on November 14, 2006: Mr.

Anthony appeared before the meeting for the purpose of further explaining his proposal and his intention develop the property. Mr. Anthony informed Council that he wished to demolish the Junior High School portion of the property as soon as possible. Mr. Anthony would like to demolish this building because the Assessment Roll is completed as of December 1 st , of each year. He would like to have this property demolished prior to the completion of the Assessment Roll so that the assessment would be reduced accordingly. Mr.

Anthony submitted a copy of a certified cheque which he has provided to the Municipal Solicitor in the amount of $25,000.00 for the purchase of the property. He has also provided a draft of the insurance coverage on the property which will be put in place on November 15 th … [The foregoing quotation has not been edited for grammatical errors.] [ 105 ] This is an another example of the frailty of Anthony’s memory. In questioning, he indicated that these events were 15 years ago, and he simply forgot that he addressed Council.

By a unanimous motion on November 14, 2006, Council agreed to enter into an APS with Anthony’s company. [ 106 ] The next day on November 15, 2006, Anthony was writing to his insurance agent advising that he wanted to commence work “asap” and that he had scheduled the demolition for “Monday morning.” Anthony agreed that when his company was demolishing the buildings on the site, he did not have a date for closing. He agreed that his November 14, 2006, letter did not link the Jacques Whitford request to the closing date. He agreed that when a transaction is closed, due diligence must be completed.

He maintained, however, that this was not a “normal transaction”, because of the “comfort zone” he had, and the assurances he said Harding and Holland provided him. He could not point to any documentary support for this view, but said he asked, and no one said “no”. He said “maybe it’s my fault because they never said no to me”, and added, “sooner or later silence becomes betrayal”. [ 107 ] The Council resolution, ostensibly finalized November 6, 2006, predates the November 14 letter from Anthony, with its request for a Jacques Whitford letter. In particular, the resolution states: FORMER B.M.H.S.

PROPERTY A recommendation from the Clerk-Treasurer was previously circulated to members, by email, regarding the proposals received on the former B.M.H.S. property. Page 4, Committee of the Whole Council Meeting, November 6, 2006 It is the recommendation of the Clerk-Treasurer that he proposal received from Anthony Properties Limited be accepted by the Municipality. This proposal appears to be the best of the alternatives provided. It would provide $25,001.00 for the property to the Municipality. The property would then become taxable and produce tax revenues to the Municipality. Mr.

Anthony would develop the property in the future so as to add to the Municipality’s tax base and to create jobs in the area. The portion of the property that is not

usable would be demolished by the owner and removed from the site, and finally the Municipality would not become involved in environmental issues with the property as it would be sold on an as is/where is basis. The sale of the property would also allow the Municipality to retain ownership of the track and field for use of the public. Resolution COW061114 Moved by S. Strang and seconded by D.

Messenger that it be recommended o Council that the former Barrington Municipal High School property be sold to Anthony Properties Limited and that the appropriate Agreement of Sale be completed, including the stipulation that the purchaser is responsible for all survey and legal costs for the purchase of the property. Motion carried unanimously. [Emphasis Added] [ 108 ] While Anthony conceded that there was no express suggestion that Harding would look into environmental concerns, he expected that Harding would include a clause in the agreement requiring a Jacques Whitford letter or assurance.

I note that he did, in fact, include an opt-out for the Plaintiff in Clause 9 of the APS. [ 109 ] In Anthony’s affidavit of October 15, 2018, he stated: 29. Despite the assurances I had received for many months from Holland and Harding regarding the Board and the requirement that the Property be clean when it is handed back to the Muni, I wanted to be sure there was a requirement in writing that the Board must provide proof of no contamination. [ 110 ] It was put to Anthony that this paragraph suggested that he was not relying on assurances from Harding or Holland, but was taking other steps.

He agreed that he was not prevented from raising his request for a Jacques Whitford letter after he received the soil samples in the AGAT Report. [ 111 ] Anthony confirmed that he was familiar with the RFP proposal evaluation undertaken by the Municipality in August 2006, which included the Anthony’s Properties Ltd. proposal that stated, “No environmental assessment or evaluation required.” He agreed that this evaluation occurred after his proposal and presentation in May 2006.

Anthony was referred to his letter of October 2, 2006, to Holland and Council, in which he wrote: I am trying to make this as easy as possible as I am taking most of the risks. 1. Buy proper as is, No Phase 1 or other major concerns that could be a Major problem if this is done. [ 112 ] It was put to Anthony that the RFP had not come out before he received the alleged assurances, and that he wrote to Council that he would buy “as is” with no Phase I. Anthony now said he had assurances about the environmental state of the property before the RFP appeared. Again, this is a shifting account by Anthony.

In prior discovery evidence he had pointed to the end of November. [ 113 ] It was further put to Anthony that he gave a media interview after his bid was accepted in which he said the property was a “steal of a buy.” While he claimed not to recall, he did not deny this. He was referred to a news article, dated November 17, 2006, which included the following passages: BMHS sold for condos and commercial units The former Barrington Municipal High School Property in Barrington Passage has been sold. The Municipality of Barrington finalized a deal with K.B.

Anthony Properties Ltd. at last Tuesday night’s (Nov. 14) council session. Proprietor Ken Anthony is purchasing the property, excluding the athletic complex area, for $25,001. “I think it was a steal of a buy,” said Anthony, who is starting work immediately by demolishing the junior high and converting the senior high

section into condominiums. “The building (senior high) is solid as a rock,” said Anthony. “All the infrastructure is there so it’s more or less cosmetics.”. That

section of the school has also been given a clean bill of health. “There are no environmental concerns there,” said Anthony, who has already started to build a demo suite… [ 114 ] Anthony agreed that he gave the interview, including the remark that “there are no environmental concerns here.” He said he could not recall how he knew this on November 17, 2006.

Soil Analysis, Jacque Whitford Letter, and Closing [ 115 ] Anthony was asked whether, when he referred to a letter from Jacques Whitford with regards to the tanks being removed in response to an email from Harding on November 20, 2006, he meant the tanks that were identified as being removed by the Board. He denied this, and said it was in reference to any tanks on the Property.

He was directed to his affidavit of October 15, 2018, where, at paragraph 25, he stated: By this point I had become aware that there were at least two oil tanks that the Board were having removed, and that the Board would then have the area where the tanks had been located, tested for any soil contamination. I was focussed on the tank removals that the Board and the Muni had made me aware of, and not making sure that those areas were not contaminated.

I presumed that the Muni, with Harding’s advice, was doing what it needed to do to assure itself that the Board couldn’t return the Property to the Muni in a contaminated state.

[ 116 ] Anthony agreed that his focus in that paragraph was on the oil tanks that the Board was removing. His affidavit went on, at paragraph 47: On November 21, 2006 Holland email me and copied Stoddart, and when referencing an oil tank behind the junior high school building he says “…the sooner it is removed and the letter from Jacques Whitford is provided, the better.” As Holland notes in his email, I called Stoddart directly and he and I spoke about that tank and the other diesel fuel tank and the Board was also having removed from the Property, along with the environmental cle

[…]