DCC/wak NOVA SCOTIA COURT OF APPEAL Citation: Milne v. Twin Mountain Construction Ltd., 2003 NSCA 41 Date: 20030414 Docket: CA 187910 Registry: Halifax Between: Norma Milne and Murray Tweedie v. Twin Mountain Construction Limited Respondent Judges: Roscoe, Bateman and Hamilton, JJ.A. Appeal Heard: April 11, 2003, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Hamilton, JJ.A. concurring. Counsel: Michael Coyle and Thomas MacEwan, for the appellants Thomas Jarmyn, for the respondent Reasons for judgment: [1] This is an appeal from an interlocutory order dismissing the appellants’ demand for particulars of general damage claim. [2] In an action initiated in the Supreme Court, Twin Mountain Construction (the respondent) has claimed that Norma Milne and Murray Tweedie (the appellants) “negligently or fraudulently” misrepresented the boundaries of a parcel of property that the appellants sold to the respondent. Alternatively, the respondent claimed breach of contract. Since 1996 the respondent company had, with permission of the appellants, used the property for composting, the creation of topsoil and sand excavation. The company purchased the property in order to continue these activities. The respondent says, in essence, that because the property is materially less than the size it was represented to be, its plans to extract sand or otherwise develop the property are negatively affected. [3] The appellants (defendants in the Supreme Court action) demanded better particulars of the damages (Civil Procedure Rule 14.24). It was the respondent’s position that no further particulars were required. The appellants therefore applied to Chambers judge for an order compelling substantive response to the demand. Civil Procedure Rule 14.24 provides: (1) Where party, upon receipt of notice in writing demanding further and better statement of the nature of the claim or defence of the party, or further and better particulars of any matter stated in any pleading, affidavit or statement of facts of the party, fails to supply them within the time specified in the notice, which time shall not be less than ten (10) days, the court may, upon such terms as are just, order the particulars to be delivered within specified time, or, if no time is specified, then the particulars shall be delivered within ten (10) days from the date of the order. (2) The statement or particulars shall be filed and attached to the pleading, affidavit or statement of facts to which the same refers. (3) The party demanding the statement or particulars shall, unless an order otherwise provides, have ten (10) days for pleading after delivery of the statement or particulars. [4] The matter came on for hearing before Justice Alan P. Boudreau of the Supreme Court who, while ordering better particulars of the claim for special damages, dismissed the application for further particulars of the general damage claim. The appellants say that in the latter regard, the judge erred at law. [5] When particulars are demanded before Defence has been filed such are generally not ordered unless necessary to enable the defendant to plead. (See D.B. Chaisson and I.H. Dennis, Odgers’ Principles of Pleading and Practice in Civil Acts in the High Court of Justice, 22nd ed. (Stevens Sons, 1981) at p. 152 and Hanna (M.A.) Co. v. Nova Scotia (Premier) (1990), 1990 CanLII 4219 (NS SC), 97 N.S.R. (2d) 281; N.S.J. 143 (Q.L.)(S.C.T.D.) at paras. 10 and 11). [6] The general damage claim in issue here is worded as follows: 13 ... (a) General damages based upon expected profits from development of the property and/or excavation of sand; [7] While maintaining that the details of the damages sought are not sufficiently particularized in the statement of claim, the appellants have not suggested that the pleading is so deficient as to warrant striking under Civil Procedure Rule 14.25. [8] The appellants urge that the particulars should have been ordered because Civil Procedure Rule 14.13(a) requires the respondent to plead details of the quantum of the expected general damages: 14.13. statement of claim, counterclaim, and third party notice, shall state specifically, (a) particulars of any damages, whether special or general, that are ascertained or ascertainable and capable of being calculated in terms of money, and these damages with the amount thereof shall be claimed as special damages; (b) particulars of any other general damages, but the amount thereof need not be stated; (c) any other specific relief or remedy being claimed, other than claim for general or other relief, but costs need not be claimed. [9] The appellants argued before the Chambers judge that they were entitled to know the amount of the claim for general damages based upon expected profit from the development of property and/or the excavation of the sand. They maintained that they could not file defence until such information was provided. [10] It was the respondent’s position that particulars of damages need only be pleaded where the demand is liquidated. An expectation claim which depends upon variable factors (here, factors such as the state of the economy, the price of sand, the cost of excavation) need not be particularized in the pleadings. [11] I am not persuaded that the absence of the particulars sought by the appellants compromise their ability to file a defence to this action. It is difficult to conceive of what additional information the appellants need at this stage. The respondent has specified the type of damages that it seeks. [12] The necessity for particulars must be evaluated taking into account the nature of the action and the timing of the demand in the context of the Civil Procedure Rules as whole. There are other Rules (for example Rules 18, 19 and 20) which can be utilized by the appellants to discover the underlying details of the damage claim. [13] The matter on appeal is an interlocutory, discretionary decision of Chambers judge. The standard of review is simple but stringent one. This Court will not interfere unless wrong principles of law have been applied or patent injustice would result. am not persuaded that either is the case. DISPOSITION: [14] It is my view that this interlocutory appeal is unnecessary and completely without merit. I would dismiss the appeal with costs to the respondent of $1500 inclusive of disbursements. Bateman, J.A. Concurred in: Roscoe, J.A. Hamilton, J.A.
The plaintiff company sued the defendants for negligent misrepresentation and breach of contract alleging that the defendants sold it a piece of land smaller than what it was represented to be. The plaintiff intended to excavate and sell sand from the land and claimed damages including loss of profits due to the smaller amount of sand available. Before filing a defence the appellants demanded particulars of the alleged lost profits. The plaintiff refused to provide particulars and the chambers judge dismissed the appellants' application for an order compelling particulars. ,appeal dismissed; the appellants had not challenged the sufficiency of the pleadings; no case was made out that the appellants required the particulars in order to file a proper defence to the action.  There were other rules available to the appellants which could be utilized to discover the underlying details of the damage claim.