1996 S. P. H. No.01015 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JOHN E. BURTON; DARRYL R. BURTON; BLAIR D. BURTON and SHELDON J. BURTON; and THE MUNICIPALITY OF THE COUNTY OF INVERNESS; and DIRECTOR OF ASSESSMENT and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty The Queen in Right of the Province of Nova Scotia; THIRD PARTY HEARD: Before the Honourable Justice D. Merlin Nunn, at Sydney, Nova Scotia, on February 25, 1997 DECISION: March 27, 1997 COUNSEL: William P. Burchell, for the Plaintiff Peter A. Mclnroy, for the Defendant, Municipality Alexander M. Cameron, for the Defendant, Attorney General NUNN, J. The main facts giving rise to this action have been extensively reviewed in four separate decisions, two in the Supreme Court of Nova Scotia and two in the Nova Scotia Court of Appeal, and all arise out of tax sale of certain lands by the defendant, Municipality. Sometime in 1990 the defendant, Municipality, sold at tax sale certain property owned by the plaintiffs to one Frank Maclnnes. Because of disputes over ownership between the plaintiffs and Maclnnes, the latter commenced an action against the plaintiffs seeking declaration as to the validity of the tax deed. This action cited as Frank Arnold Maclnnes et al v. John E.Burton et al (1991), 1991 CanLII 4277 (NS SC), 110 N.S.R. (2d) 380, Saunders, J. decided in Maclnnes' favour, upholding the validity of the tax sale and was critical of the behaviour of the plaintiffs regarding notices and knowledge of the tax sale. The Burtons appealed this decision to the Court of Appeal, Burton, et al v. Maclnnes et al (1992), 116 N.S.R. (2d), which overturned the trial division basically on the grounds that the sale itself was void. Maclnnes et al v. the Municipality of the County of Inverness and Director of Assessment and the Attorney General of Nova Scotia, (1994), 1994 CanLII 4413 (NS SC), 134 N.S.R. (2d) 170, the third related action was to recover damages suffered by the Maclnnes' as result of the aborted tax sale. In that action, Richard, J. allowed number of items of damage, including all legal costs and fees incurred in the Maclnnes et al v. Burton et al, supra, the first action, on solicitor and client basis against the Municipality and the Attorney General. This action was appealed and in Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and the Director of Assessment v. Frank Arnold Maclnnes, Myles Curtis Maclnnes and J.P. Maclnnes Trucking Limited and the Municipality of the County of Inverness, (1995), 1995 CanLII 4222 (NS CA), 141 N.S.R. (2d) 212, Chipman, J.A. delivering the Courts' decision, allowed certain of the amounts claimed, essentially legitimate cost items relating to the sale amounting to $7,522.95, but overturned the trial judge on the claim for legal costs incurred at the first trial, which by the time of the appeal were set forth as $39,385.82. The grounds for the reversal was that this item of damage was too remote, not foreseeable, because, indeed it was not reasonable for that first action to have been embarked upon when the true state of affairs could be discovered upon reasonable investigation. should add that the Court of Appeal apportioned liability between the Municipality and the Director of Assessment at 50% each. The present action is by the defendants in that first case to recover its legal fees together with some other items of loss and general damages. The specific ­items of loss claimed are set forth in Exhibit 2, Tab plus additional legal fees of $13,015.31 of Mr. Burchell, in addition to 5,414.00 in Tab 7. Those claims are as follows: Royal Bank interest charges (16 months April 1991 to July 1992): $5,549.00 Repairs and Maintenance: 11,000.00 Legal Fees: 18,429.31 Rental Income Lost: 10,200.00 Mileage: 1,680.00 Lost wages (John Burton): 500.00 Loss of sale of property to one Charles Dorrington: 200.000.00 TOTAL: $247,358.31 The plaintiffs are also claiming $200,000.00 for general damages making total claim of $447,358.31. The evidence regarding the loss of sale claim is statement of John Burton that he discussed sale with one Charles Dorrington at price of $200,000.00. (See Exhibit 2, Tab 4). There is no other evidence, no agreement of sale or other contract document and Mr. Dorrington is deceased since 1994. At best, this evidence, unsupported, does nothing more than indicate possibility of sale at some future time. In these circumstances this item of claim must be dismissed. With regard to the very large claim for general damages, again there is almost no evidence to warrant an award. At the time of the events of this sale and the first two court cases, the plaintiffs were also engaged in the bankruptcy of their commercial furniture business and undoubtedly were already under great stress and tension. There is no solid evidence of injury of any kind to warrant any award of damages, therefore, this item of claim is dismissed. An award of general damages may not lie against the defendants in any event arising out of tax sale held to be void. Chipman, J.A. reviews the liability of municipality on void tax sale in Attorney General et al v. Maclnnes et al, supra, and indicates that the damage consequences, in these circumstances, would not likely be different whether the action was in contract or tort and concludes the damages to the buyer to be "the price paid together with all incidental and necessary expenses." would agree and say for the owner damages would be incidental and necessary expenses relating to the recovery of the property and any damage to it while out of the plaintiff's possession. That does not include general damages for pain, suffering or other aggravation. Even if am wrong on this point, as have indicated, there just is not sufficient reliable evidence which would lay basis for any award under this head. The evidence provided on this claim is set forth in Exhibit 2, Tab and few ­supporting comments in the testimony of Sheldon Burton and his father, John E. Burton. The claim for legal fees for the first action and appeal must, in the face of the decision in the Attorney General et al v. Maclnnes et al, supra, also be dismissed. If the legal fees were too remote and unforeseeable for the plaintiff in that action against the Municipality, then they also must be too remote and unforeseeable for the defendant in the same action,To this point 1 have dismissed, $418,429.31 of the plaintiffs\' claim leaving claims totalling $28,929.00 to be considered. The evidence indicates the tax sale took place on February 1, 1990 and tax deed was received on March 4, 1991, after the one year statutory redemption period. The Maclnnes tried to take possession which the plaintiffs opposed and only gave up after the Saunders, J. decision of December 6, 1991. The plaintiffs regained possession after the Court of Appeal decision of July 2, 1992, total period out of possession of seven months. Though the plaintiffs claim bank interest on their loan used to acquire the property for the whole period of the tax sale, do not think they are so entitled having had actual possession throughout most of the period. would allow, however, interest for seven months which according to Exhibit 2, Tab is $2,210.00 and accept that figure. The plaintiffs claim series of items of damage to the property alleged to have occurred while they were out of possession. John Burton testified that he winterized the property in December 1991 leaving it "as he always did". While the damages alleged may very well have been caused by vandalism or would have occurred in any event to a property left vacant through the winter months, I am satisfied that such damage as claimed occurred and did so when the plaintiffs were out of possession and the defendants must be held responsible. The list of damage items are shown as estimates in Exhibit 2, Tab totalling $11,000.00, of which $5,000.00 relates to pool liner. In support are two estimates, one of D.C. White contracting for $6,000.00 for the miscellaneous items, and one of Aqua Pool and Accessories Ltd. for $6,402.80 for the pool repairs, totalling $12,402.80 slightly more than the Exhibit 2, Tab estimate. John Burton testified that the White estimate, though undated, was made in 1992 and the Aqua Pool estimate, though dated in 1996, was replacing an earlier one that was lost. would allow this item of damage at $12,402.80. Exhibit 2, Tab sets out as miscellaneous claims, rental income loss, mileage claim for the Burton family and lost wages of John Burton. None of these claims can succeed. No lost rental income has been proved and the mileage and lost wages claims relate to the first trial and appeal. As to the whole of this claim, have allowed total damages fixed at $14,610.80. cannot help but comment that this case should not ever have gone to court with the type and quantity of damages claimed. In view of the previous actions and decisions, reason should have prevailed and the unreasonableness of the damage claim understood and appreciated by counsel and the plaintiffs themselves. Counsel for the defendants allege contributory negligence by the plaintiffs should be found and assessed alleging that their negligence with regard to receiving notices of the tax sale and their failure to meet their obligations as owners of property, amounts to contributory negligence. Though their behaviour was, perhaps, less than that of prudent property owner, cannot agree that it should be held to make them liable for any of the loss claimed. The situation here is not one to which the doctrine of contributory negligence would apply. need not comment on any division of liability between the defendants as that has already been determined by Chipman, J.A., in Attorney General et al v. Macinnes, et al, supra, where he apportioned the fault equally between the Municipality and the Director of Assessment. The plaintiffs are entitled to their costs in accordance with Tariff A, Scale 3, at an amount involved rounded out to $15,000.00. J. March 27, 1997
The defendant municipality sold property owned by the plaintiffs at a tax sale. Because of disputes over ownership between the plaintiffs and the purchaser, the latter commenced an action against the plaintiffs seeking a declaration as to the validity of the tax deed. The deed was held to be valid at trial, but the tax sale was found to be void on appeal. The plaintiffs sought to recover their legal fees from the municipality and the Attorney General together with some other items of loss and general damages. Awarding damages to the property while the plaintiffs were out of possession and bank interest for the same period, that there is no evidence to warrant an award for general damages. Furthermore, no legal fees awarded, as they were too remote and unforeseeable.