Halifax (Regional Municipality) v. 3006128 Nova Scotia Ltd.

Halifax (Regional Municipality) v. 3006128 Nova Scotia Ltd. Court Supreme Court Date 2001-01-17 Citation 2001 NSSC 8 Docket SH 158447 Judge/Registrar/Adjudicator Goodfellow, Walter R. E. (Honourable Justice) (SC) (SC) Document Type Decision Relations Library Sheet - Halifax (Regional Municipality) v. 3006128 Nova Scotia Ltd. - 2001 NSSC 8 - 2001-01-17 - Library Sheet Decision Content Case No. Vol. No. THE HALIFAX REGIONAL MUNICIPALITY PLAINTIFF - and - 3006128 NOVA SCOTIA LIMITED, a body corporate, ROLLS AUTO GLASS INCORPORATED, a body corporate, DAVID MacDONALD and WHITE STAR HOLDINGS LIMITED, a body corporate DEFENDANTS Justice Walter R. E. Goodfellow Halifax, Nova Scotia File No. S.H. 158447 [Cite as: Halifax (Regional Municipality) v. 3006128 Nova Scotia Ltd., 2001NSSC8] LIBRARY HEADING DATE HEARD: November 14th, 2000 (Chambers) DECISION: January 17th, 2001 SUBJECT: STAY - INJUNCTION - SUMMARY JUDGMENT SUMMARY: HRM commenced an action September 20th alleging it is owner in fee simple of 2173 Barrington Street, that David MacDonald in his fiduciary capacity duped HRM employee into accepting a one year plus lease which HRM maintains was beyond authority of the individual. Several cross-claims and counter-claims. HRM subsequently commenced expropriation proceedings. APPLICATIONS - (I) An application by 3006128 N.S. Limited filed August 15th, 2000 to stay the expropriation proceedings. This Application is supported by an Affidavit of Leslie Rafael. (II) Rolls Auto Glass Inc. joins in the Application and also seeks a stay of the expropriation proceedings. This Application is supported by the Affidavit and Supplementary Affidavit of Randolph Rolls. Concluded HRM and Rolls failed to meet three-identities test - Rocois Construction Inc. v. Dominion Ready Mix Inc. et al (1990), 112 N.R. 241, (S.C.C.) and wider jurisdiction conferred by Judicature Act. (III) Both 3006128 N.S. Limited and Rolls Auto Glass Inc. seek an injunction restraining HRM from proceeding with the expropriation of their respective alleged interests. Interest of parties capable of full satisfaction by award of damages/compensation. (IV) Rolls objects to and applies to strike portions of the Affidavits filed by HRM pursuant to CPR 14.25 and 38.11. Court reluctant to set too rigid limitation. Affidavit of expert appropriate to express observations. Affidavit of a solicitor expressing a legal opinion struck. In any event, objections to Affidavits, if allowed, would not change conclusions on substantive applications. The Court repeated concern for solicitors filing Affidavits. Ronald C. Veniot v. Barbara W. Dohaney, December 13th, 2000, S.H. No. 162934. (V) An Application by HRM for Summary Judgment. HRM fails to meet threshold of very strong entitlement and Defendants meet threshold of providing fairly arguable defences. All applications dismissed. NO PRECEDENT VALUE. COURT OF APPEAL HAS ADDRESSED AND PRONOUNCED UPON THESE ISSUES. (Decision - 34 pages) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET. Date: 20010117 Docket: S.H. No. 158447 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: The Halifax Regional Municipality v. 3006128 Nova Scotia Limited, et al, 2001NSSC8] BETWEEN: THE HALIFAX REGIONAL MUNICIPALITY PLAINTIFF - and - 3006128 NOVA SCOTIA LIMITED, a body corporate, ROLLS AUTO GLASS INCORPORATED, a body corporate, DAVID MacDONALD and WHITE STAR HOLDINGS LIMITED, a body corporate DEFENDANTS D E C I S I O N HEARD BEFORE: The Honourable Justice Walter R. E. Goodfellow in the Supreme Court of Nova Scotia (Chambers) on November 14th, 2000 DECISION: January 17th, 2001 COUNSEL: William H. Kydd, Q.C. and Shawn Harmon, for the Plaintiff R. Barry Ward, for 3006128 N.S. Ltd. Mark J. Covan, for Defendant, Rolls Auto Glass Inc. Barry Mason on record, not in attendance David MacDonald, self-represented GOODFELLOW, J.: BACKGROUND [1] The Halifax Regional Municipality (“HRM”) commenced an action September 20, 1999 alleging it is the owner in fee simple of Civic Number 2173 Barrington Street. HRM alleges the Defendant, David MacDonald (“MacDonald”), in January 1997 presented a conditional offer from Michael Frevola to lease the subject property from HRM for a term which exceeded one year and that leases exceeding one year required the approval of HRM counsel. It is alleged that MacDonald persuaded the HRM employee to accept an agreement to enter into lease for a one year term which contained the following renewal term. Paragraph 6 stated: It is agreed that this right to renew shall be made available to the tenant each and every year, so long as he is not in default, and until such time as the landlord demolishes the premises for the widening of Barrington Street. [2] The lease also contained a provision giving the tenant the right to assign it within a certain time frame. MacDonald is said to have invoiced HRM $8,827.50 for professional fees regarding the negotiations of the commercial lease agreements for 1595 and 2173 Barrington Street. Mr. Frevola gave notice that the tenant was changed to 3006128 Nova Scotia Limited (“3006128 N.S. Limited”) on March 12, 1997. [3] HRM alleges that MacDonald was an undisclosed principal. There is a letter dated March 12, 1997 to a Mr. Simpson MacLeod, Manager - Real Estate and Facilities, HRM from MacDonald and it is marked “Hand Delivered”. This letter outlines MacDonald’s intentions and declares that he never anticipated becoming involved, etcetera. He also purports to enclose the assignment, dated March 12, 1997 from Michael Frevola to 3006128 N.S. Limited. On discovery, Mr. MacLeod denied receiving the letter of March 12, 1997 and that he had never seen the assignment said to be enclosed at any time in 1997. [4] In April 1997, 3006128 N.S. Limited advised that it had sublet the property to Rolls Auto Glass Incorporated (“Rolls”) and it may be that Rolls in turn sublet a portion of the property to National Car Rental Systems. [5] HRM took the position that 3006128 N.S. Limited did not have a valid lease as the term was indefinite and alleges that MacDonald had not purchased 3006128 N.S. Limited from Mr. Frevola having incorporated the company for himself. HRM alleges that MacDonald, as an undisclosed principal, also voided any entitlement 3006128 N.S. Limited had to the lease. [6] It is alleged in November 1997 that MacDonald sold all of his shares in 3006128 N.S. Limited to Leslie Rafael. HRM maintained its position that there was no valid lease and negotiations took place which did not bear fruit and on or about June 22, 1999, HRM advised 3006128 N.S. Limited that it required vacant possession of the subject property for municipal purposes and subsequently announced that it would be utilized for a sewage treatment plant. [7] On or about August 10, 1999, HRM was served with a Notice of Intended Action by 3006128 N.S. Limited. HRM responded by commencing this action on September 20, 1999. Defences, cross-claims and counter-claims have been filed. [8] HRM, on July 7, 2000 notified 3006128 N.S. Limited that it had passed a resolution June 20, 2000 and “the Halifax Regional Municipality has by Resolution decided to expropriate the above property. Accordingly, the Municipality will be entering the property pursuant to s.52(2) of the Municipality Government Act. [9] In its letter of notification, HRM offered 3006128 N.S. Limited $2,568.00 in compensation for “its claim to an interest in the expropriated lands”. [10] Since the applications were filed, discovery of Simpson MacLeod, Manager of Real Estate Facilities, HRM, from 1986 until April 1997, took place and whether or not that letter was hand delivered at or on its date of March 12, 1997 by David MacDonald to HRM and, if so, what flows from the receipt and knowledge of its contents may well turn out to be of major significance, particularly as it relates to the claims of HRM with respect to the position of MacDonald. HRM’s Statement of Claim alleges the first time HRM saw the enclosure and the March 12th letter was on or about October 21, 1997. It appears also that the only written request for a sublet to Rolls was the letter of March 12, 1997. APPLICATIONS [11] These applications were set in Chambers for a date in September and subsequently adjourned before me November 8, 2000. The applications are: (I) An Application by 3006128 N.S. Limited filed August 15th, 2000 to stay the expropriation proceedings. This Application is supported by an Affidavit of Leslie Rafael. (II) Rolls Auto Glass Inc. joins in the Application and also seeks a stay of the expropriation proceedings. This Application is supported by the Affidavit and Supplementary Affidavit of Randolph Rolls. (III) Both 3006128 N.S. Limited and Rolls Auto Glass Inc. seek an injunction restraining HRM from proceeding with the expropriation of their respective alleged interests. (IV) Rolls objects to and applies to strike portions of the Affidavit filed by HRM pursuant to CPR 14.25 and 38.11. (V) An Application by HRM for Summary Judgment. JURISDICTION [12] CPR 14.25(1) sets out specific directions for the granting of a stay, dismissal or summary judgment if the Court determines the pleadings, affidavit, or statement of acts or any portion is to be struck or amended on one of the four enumerated grounds. The grounds themselves are specified. The provisions in the Judicature Act provide wider jurisdiction permitting the Court to grant a stay to any person, whether a party or not, so far as is necessary for the purpose of justice. [13] Jurisdiction exists to grant the stay sought by 3006128 N.S. Limited should 3006128 N.S. Limited bring itself within CPR 14.25(1) or the wider jurisdiction conferred by the Judicature Act. EXPROPRIATION ACT [14] Section 54(2) states: (2) Where all the interest of a lessee in land is expropriated or where part of the lessees interest is expropriated and the expropriation renders the remaining part of the lessees interest unfit for the purposes of the lease, as determined by the Board, the lease shall be deemed to be frustrated from the date of the expropriation. CIVIL PROCEDURE RULES [15] Civil Procedure Rule 14.25(1) states as follows: (1) The Court may at any state of a proceeding order any pleadings, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, (a) it discloses no reasonable cause of action or defence; (b) it is false, scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; (d) it is otherwise an abuse of the process of the Court; and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.. [16] Civil Procedure Rule 38.02 states as follows: 38.02(1) An Affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds thereof. [E.41/5(2)] JUDICATURE ACT [17] Section 41(e) and (g) state as follows: (e) no proceeding at any time pending in the Court shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such proceeding might have been obtained prior to the first day of October, 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto provided always that nothing in this Act contained shall disable the Court from directing a stay of proceedings in any proceeding before the Court if it or he thinks fit, and any person whether a party of not to any such proceeding who could have been entitled, prior to the first day of October, 1884, to apply to the Court to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, contrary to which all or any part of the proceedings have been taken, may apply to the Court thereof by motion in a summary way for a stay of proceedings in such proceeding either generally, or so far as is necessary for the purposes of justice and the Court shall thereupon make such order as shall be just; (g) the Court, in the exercise of the jurisdiction vested in it in every proceeding pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to the Court seems just, all such remedies whatsoever as any of the parties thereto appear to be entitled to in respect to any and every legal or equitable claim properly brought forward by them respectively in the proceeding so that as far as possible all matters controversy between the parties may be completely finally determined and all multiplicity of legal proceedings concerning any of such matters avoided; ISSUES NUMBER ONE AND TWO (I) An application by 3006128 N.S. Limited filed August 25th, 2000 to stay the expropriation proceedings. This Application is supported by an Affidavit of Leslie Rafael. (II) Rolls Auto Glass Inc. joins in the Application and also seeks a stay of the expropriation proceedings. This Application is supported by the Affidavit and Supplementary Affidavit of Randolph Rolls. [18] These applications may be addressed at the same time. Counsel for 30001628 N.S. Limited alleges that HRM is attempting to expropriate any and all leasehold interest and at the same time as HRM is denying there is any leasehold interest and that the expropriation is best described as a “without prejudice” expropriation of sorts. [19] 30001628 N.S. Limited maintains it meets the three-identities tests established by the Supreme Court of Canada in Rocois Construction Inc. v. Dominion Ready Mix Inc. et al (1990), 112 N.R. 241, (S.C.C.) also the Nova Scotia Court of Appeal in Canada Life and Health Insurance Compensation Corp. v. Blue Cross of Atlantic Canada (1997), 156 N.S.R. (2d) 384. 1. Identity of Parties [20] In ABN AMRO Bank of Canada v. Wackett (1997), 161 N.S.R. (2d) 48 (C.A.), the Court noted that Coopers and Lybrand and each partner of the partnership were named in the Nova Scotia action while a single partner was named in the Ontario action. The Court of Appeal concluded, that based on the law of partnerships, naming the individual partners, added nothing to the lawsuit and the first prerequisite was met. In the case before me, the parties involved in the two actions are not the same. The Supreme Court action involves HRM, 3006128 N.S. Limited, Rolls Auto Glass Inc. and David MacDonald. MacDonald is not entitled to compensation as a result of the separate expropriation and he has no interest before the Utilities Board in the calculation of compensation. In short, MacDonald has no interest in the expropriation except for what, if any, legal action might be taken against him depending upon the determinations. I conclude that the identity of parties prerequisite has not been met. 2. Identity of Object [21] This Supreme Court action, commenced by HRM, seeks to rectify what it says is wrong done to it by MacDonald. In the brief filed by HRM, HRM takes the position that MacDonald duped the official of HRM into executing a lease beyond his authority; namely, for an invalid indefinite term and that MacDonald did so while acting in a fiduciary capacity for HRM. HRM seeks general, aggravated and punitive damages. It categorizes 3006128 N.S. Limited and Rolls as trespassers. [22] The object of the expropriation is to obtain immediate possession of the property for what HRM says is municipal purposes under the expropriation scheme. Compensation is due adversely affected parties if it is found that they have a compensable interest. If the expropriation authority has any doubt as to the legal nature or extent of any person’s right or interest of property, it may apply to the Court for a determination of that issue. [23] Claims and remedies sought in this action are matters over which the Board has no jurisdiction and I conclude that there is no identity of object between the two actions and no multiplicity of proceedings which demand a stay. [24] This civil action can determine whether or not the lease is indefinite or otherwise and the questions of credibility that appear central to the fiduciary claims. However, if HRM is acting properly for a public purpose in expropriating the lands for a sewage plant, then only the expropriation proceedings can result in a waiver/extinguishment of any lease entitlement by substitution of compensation. 3. Identity of Cause [25] In Sydney Steel Corp. v. Canadian National Railway Company (1998), 167 N.S.R. (2d) 28, (1998), 170 N.S.R. (2d) 84 (C.A.). The CNR action for $62,000,000.00 plus the cost of removing rail already laid. The Sysco action was for $6,000,000.00 for rail already delivered, lost profit on undelivered rail, damage to its reputation and credibility plus exemplary punitive damages. Different legal facts would be the basis for the benefits which were the object of the two actions and the stay was denied at the Chambers level and the Court of Appeal commented the differences could be addressed in Nova Scotia by a counter-claim. MacDonald, in this case, has no interest or claim in the expropriation procedure and his legal position will be determined solely in this action and possible other actions. [26] The Board is limited to awarding compensation for whatever interest is expropriated. It does not deal with questions of title. Such are determined by the Supreme Court under s.17 of the Expropriation Act. In the event there is a delay of payment, caused by this process, it is within the jurisdiction of the Board to rectify as part of its award of compensation. In the expropriation proceedings, HRM need only show that it has need for the property for a municipal purpose. This action in the Supreme Court deals with the law of fiduciaries, negligence, contract, landlord tenant and trespass. Much more limited facts are necessary for the Utilities Board to address its single remedy of compensation to parties based on their interest. The Court may make determinations with respect to legal interest, the applicable law is that of expropriation and compensation in accordance with the statutory categories. The conclusion I reach is that 3006128 N.S. Limited has not established an identity of cause. [27] The result is that no entitlement of stay has been established within the specific prerequisites of CPR 14.1(5) or under the wider jurisdiction conferred by the Judicature Act. [28] Both 3006128 N.S. Limited and Rolls submit that the purpose of HRM in passing the motion of expropriation is not bona fides. Authority is advanced, including Re: Burns and Township of Haldimand, [1965] 20R768 (Ont. C.A.). I agree that the law permits a permanent stay or injunction where bad faith on the part of the municipal council exists and that was the factual situation in the Ontario Court of Appeal decision. Rolls advances the argument that HRM made an irrevocable election between the commencing of the civil suit or initiating the expropriation because what it is seeking is a remedy of possession. I agree also that there is legal authority that where relief can be achieved in an action, the mere deliberately leaving a particular claim for relief out of that action in an attempt to reserve the right to ask for it in another proceeding, can result in a permanent stay or injunction. The Court does not favour a multiplicity of proceedings. What I have already concluded is that there is a number of cause of actions and remedies in this civil action that cannot be encompassed in the expropriation proceedings and that the civil action cannot do more than determine the relationship of the parties with respect to alleged leases and sub-leases and therefore cannot achieve what HRM says is a need for the land for a public purpose. If 3006128 N.S. Limited and Rolls are correct in their allegations of lease entitlements, if determined in the civil action, then HRM would still be required to proceed with its expropriation in order to invoke the waiver provision of the expropriation legislation. [29] I have already indicated that the Court has jurisdiction to grant a stay pursuant to the direction of CPR 14.25 and the broader jurisdiction conferred by s.41 of the Judicature Act. I have already concluded that the requirements of a stay have not been met. 3006128 N.S. Limited asks in the alternative that a stay of the expropriation proceedings be based on their allegations the legal requirements of the Expropriation Act have not been complied with. [30] In Rose v. Grand Bank (Town) (1990), 82 Nfld. & P.E.I. R.317, the Court held that an expropriation is only sustainable where the expropriating authority has a lawful purpose and is acting in good faith. [31] I agree with the submission of HRM that this issue is not properly before the Court within the context of an existing civil suit and ought to have comprised a separate independent application. In any event, I will deal with the arguments advanced by 3006128 N.S. Limited and Rolls. Rolls takes the position that HRM has not dealt with it as a sub-leaseholder. The first point to note is that whether or not HRM consented to the subletting to Rolls will depend considerably upon a determination of credibility with respect to the position advanced by Mr. MacDonald in maintaining that he hand delivered a letter to Simpson MacLeod of HRM of March the 12, 1997 which deemed consent to the subletting if there were no written refusal within a two week time period. If the position of HRM prevails and Simpson MacLeod’s evidence is accepted that that letter of March the 12th was never provided to HRM in 1997, then quite likely Rolls may have to look elsewhere for relief. I hasten to add that I am making no determination but simply pointing out that HRM is entitled to take the position which may or may not be correct at the end of the day, namely that Rolls never achieved the prerequisite consent of HRM for its subletting of a portion of the property. Such a finding could well mean that HRM had no obligation in any event to deal with Rolls pursuant to the Expropriation Act. [32] I am prepared however to make the preliminary finding that the HRM has the authority in relation to the municipal sewer system and sewage treatment plants by virtue of the Municipal Government Act N.S.S. 1998 and has the expropriation authority necessary under subsection 52(1) of the Municipal Government Act resulting in HRM coming within the definitions of “expropriating authority” in the Expropriation Act. Mr. Ward, on behalf of 3006128 N.S. Limited, raises the factual credibility determination between MacDonald and HRM and said in his argument, “it’s too early I think to conclude which one is definitively correct. I think what we’re trying to suggest in resisting the summary judgment application, that this is one of those types of issues that is demonstrable on its face and requires a trial”. [33] Mr. Ward, advances the argument that HRM expropriated for an ultra vires purpose because the Water Commission is empowered to operate sewage treatment plants and sewage treatment facilities. It is clear that the legislation empowering the Water Commission to do so does not (a) make it the exclusive authority in such area, (b) contain any prohibition on HRM in exercising its jurisdiction to do so conferred upon it by the Municipal Government Act. After very careful consideration, I do not accept the forceful argument of Mr. Ward that the legislature in granting power to the Water Commission gave exclusive power to the Water Commission and excluded HRM. [34] One of the arguments advanced is that HRM failed to negotiate. There is some difference of opinion as to precisely what transpired and certainly Mr. Ward in his argument accused HRM of adopting an adversarial stance and that the discussions that took place while the City calls it negotiations, in Mr. Ward’s view they were less than that. I accept the position of HRM that at a point of time that the differences between the parties were so great, the void so wide and deep, that it would be futile to have continued discussions and negotiations. [35] Mr. Ward also maintains that the likelihood of the City of Halifax ever widening Barrington Street is non-existing and maintains when the agreement was signed it was looked at as being some years down the road and he suggests it was envisioned by the parties to be five, ten, fifteen years. In other words, they vary determinable event with respect to this is not a conclusion that I can reach in this application. Whether or not HRM was duped into signing a lease with a provision related to street widening, whether or not Simpson MacLeod had authority to enter into a lease beyond one year, whether or not the parties envisioned any time frame will require a great deal more in the way of evidence than is available in these applications. [36] Mr. Ward takes exception to the efforts of HRM relative to alternative properties, that the City deliberately excluded everything else with the exception of a piece of federal land and I have difficulty concluding the course of action followed by HRM was other than a legitimate determination that this is the appropriate property in all the circumstances. [37] On the material before me, I am unable to say the Applicant’s have established an absence of good faith on the part of HRM. What evidence I have before me indicates the necessity for a separate application to stay the expropriation. Expropriation is necessary for the fulfilment of a public purpose and in which interested parties will be able to raise whatever issues they care to advance and will receive whatever compensation they are entitled in law to. This civil action, on the other hand, will deal with a myriad of other actions and allegations between the parties, including Mr. MacDonald. [38] Mr. Covan, on behalf of Rolls, points out that on August the 4th, 2000 HRM, offered Rolls pursuant to the Expropriation Act, $5,500.00 as compensation for its claim to an interest in the expropriated lands. In making this offer, HRM disputes any interest claimed by Rolls. Mr. Covan suggests that absent acknowledgment of the interest there would be no compensation hearing before the Utility Review Board. It seems to me that the Utility Review Board can refer any legal question to the Court and subject to that legal determination, the Board, if there is entitlement, proceed with the compensation hearing. [39] What would the position be if you had two conflicting claims to the title of a piece of land being expropriated, both of them based upon possessory title or for that matter deeds? Would HRM before proceeding with expropriation be bound to await a determination between two respective claimants? Even if they had an action outstanding, the claimants would control the pace of such action and HRM if precluded from proceeding without acknowledging a specific interest to one of the claimants at its peril to the claim of the other claimant, such would defeat the public good underlining the power of HRM to expropriate. Similarly, you can have situations, particularly in the more rural aspects of HRM where the assessment rolls designate the owner as unknown. [40] It seems to me that there is no absolute requirement on HRM in determining the specific interest of a party as a prerequisite to utilizing its expropriation power. The commencement of this action, if allegations against Mr. MacDonald’s conduct which gave rise to the interests, whatever they may be of 3006128 N.S. Limited and Rolls, is an appropriate course of action. There is no jurisdiction under the Expropriation Act to deal with the fundamental claims of the City in relation to Mr. MacDonald which I have said may well have a major impact on the position of the other parties. [41] Given my determination that HRM was acting within its legislative authority and has acted in good faith, I conclude that its approach in the expropriation to 3006128 N.S. Limited and Rolls is consistent with its public responsibilities and in the circumstances, reasonable and appropriate. [42] It is clear that Rolls has no direct contractual relationship with HRM. Without deciding the position of Mr. MacDonald and the major credibility issue between Mr. MacDonald and HRM, Rolls recovery may possibly turn out to be solely against 3006128 N.S. Limited and possibly Mr. MacDonald. Indeed, as Mr. Covan points out, Rolls has a cross-claim against 3006128 N.S. Limited. [43] The volume of correspondence before me clearly suggests efforts on behalf of HRM to negotiate a resolution of the outstanding claims and participation in that process by both Rolls and 3006128 N.S. Limited. Mr. Covan supports the view that HRM made an irrevocable election commencing the action precluding initiating expropriation and I conclude to the contrary. Mr. Covan points out that the expropriating authority will deal directly with his client, Rolls, and that they have already dealt directly with the sub-tenant of Rolls, National Tilden. Rolls is claiming entitlement by virtue of its five year lease with 3006128. Neither Rolls nor Tilden have any direct contractual relationship with HRM. Mr. Covan points out that s.17 of the Expropriation Act permits the expropriating authority to make the application with respect to a determination of an interest. [44] Mr. Kydd, on behalf of HRM, placed on record that any person, including Mr. Covan’s client, can file a notice with the Utility and Review Board requesting compensation and if HRM denies that interest, then the authority is there to refer the matter to the Supreme Court for hearing and HRM, as a matter of record, does not object to Mr. Covan’s client making that request. [45] In reaching my conclusions, I am mindful of the case law quoted by counsel and in particularly Mr. Covan’s reference to Thomson v. Halifax Power Company (1914), 47 N.S.R. 536 (C.A.) where Justice Graham cited with approval Lord Westbury in Simpson v. South Stratfordshire Waterworks Company to the effect that any doubt should be resolved in favour of the landowner and not in any manner to give the expropriating authority any power than was not most clearly and expressly defined in the Statute. In other words, expropriation powers, being powers that interfere with an individual’s rights to property, should be strictly construed. [46] I am unable to reach the conclusion advanced by Mr. Ward that HRM’s dominant purpose in proceeding with the expropriation is not the use of the property so much for municipal purposes but to “frustrate” the lease. There is evidence before me of HRM’s clear intent to proceed with sewage treatment facilities. ISSUE NUMBER THREE (III) Both 3006128 N. S. Limited and Rolls Auto Glass Inc. seek an injunction restraining HRM from proceeding with the expropriation of their respective alleged interests. [47] The granting of injunctive relief based upon s.43(9) of the Judicature Act and Civil Procedure Rule 43.01(1) is that there are serious issues to be tried and if no injunctive relief granted, irreparable harm will follow. The Court also has to address the balance of convenience question in reaching its determination as to whether to grant injunctive relief. [48] In the course of the lengthy argument I inquired as to what harm would Rolls Auto and 3006128 suffer that cannot be compensated for in damages. We are not dealing here with a franchise agreement, perishable goods, etcetera, or any matter that is not readily compensable by an appropriate award of damages. All of the claims advanced are capable of being adequately met by an award of damages and I find no irreparable harm to any of the parties that warrants injunctive relief. Indeed, injunctive relief would have a very harmful impact on the pursuit of HRM in what it says is a bona fide public purpose. While it is not necessary to reach an assessment of the balance of convenience, if I had been required to do so, it seems to me that in these circumstances, the public good would prevail because the delay in proceeding with the sewage treatment facility would be a far greater inconvenience to the public at large than any inconvenience that might arise to the Defendants which in any event is compensable in damages. [49] The Applicants have failed to establish the prerequisites necessary for injunctive relief either on an interim or permanent basis. The loss of a property interest and/or a business interest commonly flows from expropriation itself. Such a loss generally as is the case here, does not warrant the heavy exercise of injunctive relief. ISSUE NUMBER FOUR (IV) Rolls objects to and applies to strike portions of the Affidavit filed by HRM pursuant to CPR 14.25 and 38.11. [50] Rolls Auto Glass Inc. objects to the following portions of the Affidavit of Maurice Lloyd: Affidavit of Maurice Lloyd At paragraph 2 of his Affidavit, Mr. Lloyd states: “This system of sewage disposal does not meet modern acceptable water quality standards as set out on page 3 and 4 of the report attached as Exhibit “A”. Mr. Lloyd goes on to note at paragraph 10 that: “The current occupation of the lands by Rolls Auto Glass and the other occupants will delay construction of the sewage treatment plant, if the lands are not vacated prior to January, 2001, which will cause harm to the Municipality and its inhabitants by reason of continued extension of untreated sewage flowing into the harbour.” At paragraph 11, Mr. Lloyd states: “That in my experience, sewage disposal has always been a traditional and key municipal purpose and is a service provided by municipal governments generally ...” [51] I had occasion to address the striking of several portions of an Affidavit in MacDonald v. Workers’ Compensation Board (N.S.) (1996), 145N.S.R. (2d) 301, a portion of the head note of which reads: Practice - Topic 3077 Applications and motions - Applications - Affidavit evidence - Content of - The Nova Scotia Supreme Court referred to the following principles respecting preparation of affidavits: “(1) Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material. An affidavit should not take on the flavour of a plea or a summation. (2) The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used in an application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters disposed to except where stated to be based on information and belief. (3) Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referred to in the affidavit. It is insufficient to say simply that ‘I am advised’. (4) The information as to the source must be sufficient to permit the Court to conclude that the information comes from a second source. (5) The affidavit must state that the affiant believes the information received from the source.” [52] An Affidavit may be filed that contains opinion evidence where the Affidavit indicates the necessary qualifications to permit the Court to rule that the opinion expressed is within the field of expertise of the affiant. [53] Rolls made it clear that it did not intend to cross-examine Maurice Lloyd and his Affidavit sets out his professional background and that he has been the head of the Harbour Solutions Project since September the 1st, 1998, a project mandated to implement the establishment of modern sewage treatment facilities in HRM. [54] In paragraph 2, all Mr. Lloyd is saying is that the existing sewage disposal system does not meet the standards contained in the report to HRM on the Halifax Harbour Solutions Project by the project team. [55] The opinion he expresses in paragraph 10 with respect to the occupation of the lands causing delay in construction is a statement of the obvious. [56] Whether or not the Project Committee Report is accurate as to its view with respect to quality standards and whether or not delay will cause harm are perhaps opinions that may or may not be beyond Mr. Lloyd’s expertise. [57] Mr. Lloyd has extensive experience going back to his early days as Director of Planning in the City of Dartmouth from 1959 onward and what he states in paragraph 11 can probably be accepted as an observation. Whether or not it is a municipal purpose within the Expropriation Act is a mixed question of fact and law or perhaps a question of law. [58] It is not necessary for me to attach weight to the objected portions of the Affidavit in order to reach the conclusions on dismissal of the stay applications, the claim for injunctive relief and the application for summary judgment. I am reluctant to put too narrow a limitation on what may be contained in an Affidavit in a Chambers Application and to give any direction as to where the line should be drawn. As it is not necessary to do so for my conclusions, I will make no further comment on Mr. Lloyd’s Affidavit. [59] With respect to the Affidavit of Martin Jones, I agree with Rolls that it is a legal opinion and a determination of whether or not there exists a valid lease and if so, that 3006128 N.S. Limited does or does not have a right of renewal or subletting and further, whether Rolls Auto does or does not have a compensable interest are the very issues that will be heard in the actions. The Affidavit of Martin Jones is struck from the file. [60] The brief filed by 3006128 N.S. Limited takes exception to the Affidavit of HRM’s solicitor, William H. Kydd, sworn October the 27th, 2000 as “clearly proving” its claim should be struck in that it is essentially a legal opinion. I had occasion to express the Court’s concern about the use of a solicitor’s Affidavit recently in Ronald C. Veniot v. Barbara W. Dohaney, December the 13th, 2000, S.H. 162934. [61] I find much of Mr. Kydd’s Affidavit to be essentially arguments and submissions advanced and I treat it as part of his brief and argument, not as evidence to establish facts. [62] The objections to portions of Affidavits do not influence or alter my determinations with respect to the other applications. ISSUE NUMBER FIVE (V) An Application by HRM for Summary Judgement. [63] HRM seeks summary judgment and takes the position that the proper interpretation of paragraph 6 of the purported lease is clearly void in law. I agree with Mr. Covan that to address it in isolation would be to make an interpretation in a vacuum and that in interpreting any terms under a lease are a contractual instrument, one should look at the intention manifested by all the circumstances, including the words and actions of the parties. It seems to me that the Defendants are entitled to raise the issue that Simpson MacLeod, the HRM official who signed the lease, had authority and to point by way of example to the memorandum from Mr. K. R. Meech, Chief Administrative Officer, of January 24th, 1997 and of course there are other aspects and evidence that may go to fundamental issues to whether or not HRM did in fact receive the March 12th letter and lease assignment. I do not find the issue as clear in law as advanced by HRM. I conclude that Rolls and 3006128 have met the threshold of a fairly arguable issue on the question of authority and extent of authority exercised by HRM’s officials. Mr. MacDonald takes the view that it is wrong to describe the offer to lease as being a one-sided lease. He takes the view that HRM had the documentation and went through the appropriate process for a number of days. [64] There are a legion of cases from the Court of Appeal and the threshold requirement of HRM establishing a strong entitlement has not, in my view, been met and more importantly, the lesser threshold of establishing a fairly arguable defence has been met by both Rolls and 3006128 N.S. Limited. [65] As was said in Bank of Nova Scotia v. Chateau Plumbing & Heating Ltd. (1992), 111 N.S.R. (2d) 361 at 363-364: The purpose of C.P.R. 13.01 is to enable a party to obtain summary judgment without having to go to the time, effort and expense of trial and the delay in recovery, if the party can prove the claim clearly and satisfy the Court not only that there is no defence, but that there is no fairly arguable defence. Mr. Justice Cooper, in Brown v. Trynor and Boyd (1980), 37 N.S.R.(2d) 139; 67 A.P.R. 139, at p. 163, added “The overriding principle must be to do justice between the parties and not to decide such an application as in issue here in such a way as to cause injustice to one of them.” [66] It seems to me the granting of the application for summary judgment would be an injustice given all the uncertainty of evidentuary and credibility findings and accordingly, the application for summary judgment is dismissed. COSTS [67] There has been a measure of divided success and in all the circumstances, each party will bear their own costs. GENERAL [68] It was my hope and to some extent expectation after hearing lengthy argument that these matters would be resolved by a recognition that there was such a high probability the Defendants would be losing possession and that all rights could be addressed with the issues in this lawsuit, best addressed as expeditiously as possible with the hope that the determinations in this lawsuit would bring about a relatively early finalization re compensation under the Expropriation Act. It is disappointing that counsel were unable to agree and I urge them to move as quickly as possible to bring this action to trial and if, as I suspect, it can be brought to trial in a matter of a few months, HRM should consider the practical aspects and hold off proceeding with the expropriation process. This is, of course, only a gratuitous suggestion but one that I think is in everyone’s interest. [69] I am prepared to speak to the Court Schedulers and assist, if at all possible, in having the earliest possible trial dates set. J.