Williams v. Mulgrave (1999), 174 N.S.R.(2d) 338 (SC);
532 A.P.R. 338
MLB headnote and full text
Temp. Cite: [1999] N.S.R.(2d) TBEd. MR.021
Lillian Williams (plaintiff) v. The Town of Mulgrave and the Canadian National Railway Company (defendants)
(S.P. No. 04366)
Indexed As:
Williams v. Mulgrave (Town) et al.
Nova Scotia Supreme Court
MacLellan, J.
January 20, 1999.
Summary:
The plaintiff sued the defendants for damages respecting the installation of a drain pipe across her property and flooding. The defendants applied to strike the plaintiff’s statement of claim on the basis of accord and satisfaction and that the action was commenced outside the limitation period.
The Nova Scotia Supreme Court dismissed the action.
Contracts – Topic 4605
Discharge and termination – Accord and satisfaction – What constitutes – General – Canadian National Railway (CN) owned a drain pipe which crossed the plaintiff’s land – In 1985, the plaintiff learned that CN did not have a contractual right to have the pipe on her land – Thereafter, CN advised her in writing that they would perform certain work to the pipe on a “without prejudice” basis in complete settlement of any claim she had against CN respecting drainage problems – The plaintiff responded that she would appreciate it if CN carried out the work as soon as possible – CN replied that it considered the plaintiff’s response to be a confirmation of its conditions for doing the work – CN performed the work – Thereafter, the plaintiff sued CN for, inter alia, flood damage – The Nova Scotia Supreme Court held that there was accord and satisfaction and the plaintiff could not proceed with the claim resulting from drainage problems – See paragraphs 24 to 28.
Limitation of Actions – Topic 3162
Actions in tort – Trespass or injury to property – When time begins to run – Canadian National Railway (CN) owned a drain pipe which crossed the plaintiff’s land – On February 18, 1986, the plaintiff learned that CN did not have a contractual right to have the pipe on her land – In August 1997, the plaintiff sued CN et al. for, inter alia, removal of the pipe – The Limitation of Actions Act provided for a six year limitation period for actions for injury to property – The Act permitted the limitation period to be extended by a maximum of four years – The Nova Scotia Supreme Court concluded that the limitation period ran from February 18, 1986, and, insofar as the action dealt with installation of the pipe across the plaintiff’s property, it was time barred – See paragraphs 29 to 36.
Authors and Works Noticed:
Black’s Law Dictionary, generally [para. 24].
Counsel:
Jamie MacGillivray, for the plaintiff;
Harold MacIsaac, for the defendant, the Town of Mulgrave;
Robert G. Belliveau, Q.C., for the defendant, the Canadian National Railway Company.
MacLellan, J., of the Nova Scotia Supreme Court, heard this application on July 8, and November 4, 1998, and released the following decision on January 20, 1999.
