R.P. Anaka Properties Inc. v. 302186 Nova Scotia Limited

R.P. Anaka Properties Inc. v. 302186 Nova Scotia Limited Court Supreme Court Date 2021-06-30 Citation 2021 NSSC 218 Docket Halifax, No. 502805 Judge/Registrar/Adjudicator Gatchalian, Gail L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R.P. Anaka Properties Inc. v. 302186 Nova Scotia Limited, 2021 NSSC 218 Date: 20210630 Docket: Halifax, No. 502805 Registry: Halifax Between: R. P. Anaka Properties Inc. v. 302186 Nova Scotia Limited, Kenneth B. Anthony DECISION ON SMALL CLAIMS APPEAL Judge: The Honourable Justice Gail L. Gatchalian Heard: June 21, 2021, in Halifax, Nova Scotia Final Written Submissions: June 16, 2021 Counsel: Ashley Dooley, for the Appellant Christopher I. Robinson, for the Respondents Summary [1] R.P. Anaka Properties Inc. owns a property in Bridgewater. The property next door belongs to 302186 Nova Scotia Limited. The numbered company is owned and operated by Kenneth B. Anthony. On or about March 28, 2017, there was a flood and water damage on the property owned by the numbered company. Mr. Anthony blamed the neighbour R.P. Anaka for the damage. Mr. Anthony filed a claim in Small Claims Court on behalf of himself and his company. [2] R.P. Anaka argued before the Small Claims Court Adjudicator that Mr. Anthony discovered the claim when the flood and water damage occurred. R.P. Anaka argued that the claim was brought outside the two-year limitation period in the Limitation of Actions Act, S.N.S. 2014, c.35. The claim was not filed until June 6, 2019. Mr. Anthony argued that he only discovered the claim on June 7, 2017, when he found out that his insurance would not cover all of the losses from the flood. Mr. Anthony argued that the claim was therefore filed within the two-year limitation period. The Adjudicator accepted that argument. [3] R.P. Anaka has appealed. The question is whether the time for filing a claim starts when the damage is discovered or when the claimant finds out that it is not covered by his insurance. Limitation of Actions Act [4] Subsection 8(1)(a) of the Limitation of Actions Act states that a claim may not be brought after the earlier of two years from the day on which the claim is discovered, and fifteen years from the day on which the act or omission on which the claim is based occurred. It is the two-year limitation period that is the subject of this appeal. [5] Subsection 8(2) of the Act sets out a four-part test for determining when a claim is discovered: 8(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the defendant; and (d) that the injury, loss or damage is sufficiently serious to warrant a proceeding. [6] Section 9(1) of the Act states that a claimant has the burden of proving that a claim was brought within the limitation period established by s.8(1)(a). [7] On appeal, Mr. Anthony and the numbered company focussed their argument on s.8(2)(d) of the Act. They state that they could not have known that their losses were serious enough to warrant a proceeding until they learned that they had losses that could be attributed to R.P. Anaka. With respect to ss.8(2)(a), (b) and (c) of the Act, counsel for Mr. Anthony and the numbered company stated the following at the hearing of the appeal in response to questions asked by the Court: a) It was on or about March 28, 2017, the date of the flood, when they first knew or ought to have known that the injury, loss or damage had occurred. b) It was within a week or two of the flood that they first knew or ought to have known that the injury, loss or damage was caused by or contributed to by an act or omission. c) It was also within a week or two of the flood that they first knew or ought to have known that the act or omission was that of R.P. Anaka. Standard of Review [8] As the issue in this appeal concerns the Adjudicator’s interpretation and application of s.8 of the Limitation of Actions Act, her decision is reviewable on a standard of correctness. Reasons for Decision [9] In my respectful view, the Adjudicator erred in her interpretation of s.8 of the Act. Damage and damages are not the same. What a party needs to be aware of for limitation purposes is that damage has occurred, not the precise calculation of loss. The Court of Appeal addressed this distinction, in discussing s.8(2)(a) of the Act, in EllisDon Corporation v. Southwest Construction, 2021 NSCA 20 at paragraph 35: The motion judge failed to differentiate between “damage” and “damages”. What a party needs to be aware of for limitation purposes is that damage has occurred. It is not necessary that the precise calculation of loss be known. This distinction was identified by Cromwell, JA in Union of Icelandic Fish Producers Ltd. v. Smith, 2005 NSCA 145: [119] There is a distinction, long recognized, although sometimes overlooked, between damage and damages. As A.I. Ogus put it in his treatise The Law of Damages (London, Butterworths, 1973) at p. 2: The terms “damage” and ”damages” have suffered from loose usage. Some writers and judges have used them as if they were synonymous. But “damages” should connote the sum of money payable by way of compensation ... , while the use of “damage” is best confined to instances where it refers to the injury inflicted by the tort or breach of contract ... . [120] Following this description, damage, or detriment, as an element of the cause of action in negligent misrepresentation may be understood to mean an injury rather than a sum money to compensate for its infliction. Consistent with this view, the House of Lords approved the following description of what actual damage means in Nykredit Mortgage Bank Plc. v. Edward Erdman Group Ltd. (No. 2), [1997] H.L.J. No 52: ... any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has no control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by ‘actual’ damage. ... [10] The word “damage” is also used in s.8(2)(d) of the Act, and should therefore be interpreted in the same way. June 7, 2017 may have been when Mr. Anthony and the numbered company knew the full extent of their monetary loss attributable to R.P. Anaka. June 7, 2017 is not, on a proper interpretation of s.8(2)(d), the date that Mr. Anthony and the numbered company knew or ought to have known that the damage caused by the flood was sufficiently serious to warrant a proceeding. The two-year limitation period did not begin to run on June 7, 2017. No other dates are relied on by Mr. Anthony and the numbered company that would bring the claim within the two-year limitation period. Conclusion [11] I find that the Adjudicator erred in law in her interpretation and application of s.8 of the Limitation of Actions Act. I allow the appeal and find that the claim is barred from proceeding because it was brought more than two years from the day on which it was discovered. I award a barrister’s fee of $50 to be paid by Mr. Anthony and 302186 Nova Scotia Limited, jointly and severally, to R.P. Anaka, forthwith. [12] I ask counsel for the Appellant to draft the form of Order. Gatchalian, J.