Delport Realty Ltd. v. Halifax (Regional Municipality)

Delport Realty Ltd. v. Halifax (Regional Municipality) Court Court of Appeal Date 2005-02-08 Citation 2005 NSCA 26 Docket CA 230110 Judge/Registrar/Adjudicator Saunders, Jamie W. S. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Delport Realty Ltd. v. Halifax (Regional Municipality) - 2005 NSCA 26 - 2005-02-08 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Delport Realty Ltd. v. Halifax (Regional Municipality), 2005 NSCA 26 Date: 20050208 Docket: CA 230110 Registry: Halifax Between: Delport Realty Limited Appellant v. Halifax Regional Municipality Respondent Judge(s): Roscoe, Cromwell & Saunders, JJ.A. Appeal Heard: February 4, 2005, in Halifax, Nova Scotia Held: Appeal dismissed, as per reasons for judgment of Saunders, J.A.; Roscoe and Cromwell, JJ.A. concurring. Counsel: Richard L. Weldon, Secretary, Delport Realty No one appearing for the respondent Reasons for judgment: [1] The appellant applied in chambers before Supreme Court Justice Felix A. Cacchione seeking an order described as being bought pursuant to the Assessment Act, R.S.N.S. 1989, c. 23 and the Municipal Government Act, 1998, c. 18, which would oblige the respondent municipality to pay out to the appellant surplus funds following tax sales on various properties in which the appellant claimed an interest. Cacchione, J. refused the application. It is from that decision that Delport now appeals. [2] We are unanimously of the opinion that the appeal ought to be dismissed. It seems to us that the basis of Justice Cacchione’s decision was that the application was not in proper form, essentially in disarray, prompting the chambers judge to remark that it included an unsworn affidavit, a “bunch of papers” and that “the file was a mess.” Obviously it was seen to be of no assistance to the judge in addressing the merits of the application, which he pointedly declined to do. [3] We are not at all persuaded that the judge erred in his assessment of the manner in which the material was placed before the court, nor how he chose to characterize it. There is no basis for our interfering with the exercise of his discretion in rejecting it. [4] We note that the chambers judge specifically left open to the appellant the opportunity to bring forth a fresh application in proper form, whereupon it might be considered upon its merits. In doing so, in obiter, he appeared to suggest that a separate application ought to be made for each of the subject properties. [5] Without in any way intending to bind the judge hearing any subsequent application, or pronounce upon the judicial consideration of issues such as adequacy of proof, or standing, or how such matters ought to be effectively determined, we simply observe that there is nothing in the statutory framework to preclude a combination of such matters assembled as a single application. It may be relevant to note that a court fee of $175.00 is stipulated for “issuing and filing all documents pertaining to an action or application commenced in the Supreme Court . . . ” in the Regulations amending the Schedules to the Costs and Fees Act, R.S.N.S. 1989, c. 104; O.I.C. 2004 - 138, N.S. Reg. 58/204, but provision is made for a waiver of fees in appropriate circumstances. [6] We make no comment on the issue whether an assignee is a “person with an interest in land sold for taxes” within the meaning of s. 147 of the Municipal Government Act in circumstances where the assignment from the former owner is granted after a tax deed has been issued. [7] The respondent chose not to appear at the hearing. The appeal is dismissed, without costs. Saunders, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A.