SUPREME COURT OF NOVA SCOTIA  
Citation: 3021386 NS Limited v. Harding, 2022 NSSC 174  
Date: 20220708  
Docket: Hfx. No. 309535  
Registry: Halifax  
Between:  
3021386 Nova Scotia Ltd.  
v.  
Plaintiff  
Municipality of the District of Barrington, a corporation, Tri-County Regional  
School Board  
-and-  
Donald G. Harding  
Defendants  
Trial Decision  
The Honourable Justice Christa M. Brothers  
Judge:  
Heard:  
April 12, 14, 19, 20, 21, 22, June 14, 15, 16, 17 and June 30,  
2021, in Halifax, Nova Scotia  
March 17, 2022  
Additional  
Submissions  
Counsel:  
Christopher I. Robinson, for the Plaintiff  
Justin E. Adams and Bhreagh MacDonald, for the remaining  
Defendant, Harding  
Page 2  
By the Court:  
Overview  
[1] This case is about Mr. Kenneth Anthony’s gamble on behalf of the Plaintiff  
company (I will refer to Mr. Anthony as “Anthony”, and the Plaintiff numbered  
company as “the Plaintiff”). The gamble was acquiring a large property at 3752  
No. 3 Highway, Barrington Passage, Nova Scotia (“the Property”), at a low cost.  
[2] The Municipality of the District of Barrington (“the Municipality”) offered  
the Property for sale through a Request for Proposal (“RFP”), with the express  
qualification that no environmental assessment would be provided. The Plaintiff,  
through Anthony, made an offer of $25,001.00 on an “as is” basis, without any  
environmental assessments or assurances. These terms were part of an effort to  
make the Plaintiff’s bid more attractive to the Municipality. The Municipality had  
rejected bids, after a previous RFP, one of which had specifically requested  
environmental due diligence. Anthony’s willingness to forego environmental  
assurances arguably achieved their purpose, as the Plaintiff’s bid was successful.  
Anthony was nevertheless able to convince the Municipality to obtain environmental  
due diligence on the Property. Anthony alone requested and reviewed the  
environmental reports received through the Municipality. Anthony alone indicated  
his satisfaction, on behalf of the Plaintiff, with the quality of that environmental  
reporting.  
[3] After the purchase, the Plaintiff claims it discovered that the soil on the site  
was contaminated with hydrocarbons. The presence of hydrocarbons was allegedly  
caused by the earlier presence of underground tanks (UFT’s), for fueling school  
buses. A claim for damages was advanced.  
[4] Anthony’s gamble, while still a successful business venture for the Plaintiff,  
resulted in the Plaintiff acquiring a property with unanticipated environmental  
contamination.  
[5] This litigation followed three years later. In 2009, the Plaintiff sued the  
Municipality and the Tri-County Regional School Board (“the Board”) alleging,  
inter alia, negligence, breach of contract, breaches of the Petroleum Management  
Regulations and the Education Act, and misrepresentations with respect to the future  
condition of the property. Those initial pleadings made no mention of the sole  
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remaining defendant, Donald G. Harding (“Harding”), a lawyer who had acted for  
both parties to the transaction.  
[6] Four years later, in 2013, the Plaintiff amended its pleadings to add Harding  
as a defendant. The Plaintiff now alleges that Harding had represented that the Board  
would deliver the Property in a “clean” state; failed to advise that the Plaintiff  
undertake a Phase II environmental assessment; failed to advise the Plaintiff about  
the impact of an alleged “hold harmless” clause; and failed to advise the Plaintiff  
with respect to “…the potential for a dispute and conflict to develop…”. It is further  
alleged that Harding held confidential discussions with the Municipality which were  
not shared with the Plaintiff.  
[7] On April 8, 2015, the Plaintiff discontinued its action against the  
Municipality. In 2021, the Plaintiff’s claims against the Board were dismissed on  
way of summary judgment by the Nova Scotia Court of Appeal (2021 NSCA 4).  
[8]  
While the Municipality and the Board are no longer parties, the substance of  
this litigation remains unchanged. This litigation is an attempt to shift the blame for  
the business decision Anthony and the Plaintiff made fourteen years ago when, on  
Anthony’s initiative, the Plaintiff acquired the Property without conducting adequate  
environmental due diligence to identify the later-discovered contamination.  
Background  
[9] In 2002, the Board decided to close the former Barrington Municipal High  
School. The Municipality owned the land on which the high school was situated.  
The Board occupied the Property while the school operated, a span of “about 45  
years” until the Property was to be returned to the Municipality, according to the  
RFP.  
[10] The Municipality issued a RFP on February 1, 2006, for the development of  
the Property. Two bids were received, including one submitted by Anthony on behalf  
of Anthony Properties Ltd, another company he controlled. Neither bid was  
accepted. A second RFP was issued in October 2006. The second RFP stated, in  
section 2.3, that "[t]he Municipality will not provide any environmental assessment  
on this property."  
[11] On October 30, 2006, Anthony submitted two offers under the second RFP,  
one on behalf of the Plaintiff company and another on behalf of Anthony Properties  
Ltd. The Anthony Properties offer was accepted. (In the Agreement of Purchase  
Page 4  
and Sale (“APS”), however, the Plaintiff company was substituted as the purchaser  
by agreement.) The APS with the Municipality was signed by Anthony on behalf of  
the Plaintiff on November 30, 2006. The Board was not a party to the APS. Harding  
acted as solicitor for both the Municipality and the Plaintiff in relation to the APS.  
[12] The Property was not turned over to the Municipality until January 22, 2007.  
In the interim, the Board removed oil tanks from the Property. The Board provided  
a soil analysis report from AGAT Laboratories dated February 5, 2007. The  
acquisition by the Plaintiff closed on February 16, 2007.  
[13] The Plaintiff alleges that after it purchased and began developing the Property,  
hydrocarbon contaminants were discovered, requiring substantial remediation costs.  
The Plaintiff’s claim against Harding is in solicitor negligence, negligent  
misrepresentation, and breach of a dual retainer.  
Credibility and Reliability  
[14] In this case, as in so many others, the assessment of the evidence depends  
upon findings of credibility. I refer to the statement of O'Halloran, J.A. in Faryna  
v. Chorny, (1951), [1952] 2 D.L.R. 354, 1951 CarswellBC 133 (B.C.C.A.):  
9 ...the validity of evidence does not depend in the final analysis on the  
circumstance that it remains uncontradicted, or the circumstance that the judge may  
have remarked favourably or unfavourably on the evidence or the demeanour of a  
witness; these things are elements in testing the evidence but they are subject to  
whether the evidence is consistent with the probabilities affecting the case as a  
whole and shown to be in existence at the time...  
. . .  
11 The credibility of interested witnesses, particularly in cases of conflict of  
evidence, cannot be gauged solely by the test of whether the personal demeanour  
of the particular witness carried conviction of the truth. The test must reasonably  
subject his story to an examination of its consistency with the probabilities that  
surround the currently existing conditions. In short, the real test of the truth of the  
story of a witness in such a case must be its harmony with the preponderance of the  
probabilities which a practical and informed person would readily recognize as  
reasonable in that place and in those conditions. Only thus can a court satisfactorily  
appraise the testimony of quick-minded, experienced and confident witnesses, and  
of those shrewd persons adept in the half-lie and of long and successful experience  
in combining skilful exaggeration with partial suppression of the truth. Again a  
witness may testify what he sincerely believes to be true, but he may be quite  
honestly mistaken. For a trial judge to say "I believe him because I judge him to be  
Page 5  
telling the truth," is to come to a conclusion on consideration of only half the  
problem. In truth it may easily be self-direction of a dangerous kind.  
12 The trial judge ought to go further and say that evidence of the witness he  
believes is in accordance with the preponderance of probabilities in the case and, if  
his view is to command confidence, also state his reasons for that conclusion. The  
law does not clothe the trial judge with a divine insight into the hearts and minds  
of the witnesses. And a court of appeal must be satisfied that the trial judge's finding  
of credibility is based not on one element only to the exclusion of others, but is  
based on all the elements by which it can be tested in the particular case.  
[15] In Baker-Warren v. Denault, 2009 NSSC 59, the Forgeron, J. made the  
following observations about credibility, at para 19 (citations omitted):  
With these caveats in mind, the following are some of the factors which were  
balanced when the court assessed credibility:  
a) What were the inconsistencies and weaknesses in the witness' evidence,  
which include internal inconsistencies, prior inconsistent statements,  
inconsistencies between the witness' testimony, and the documentary  
evidence, and the testimony of other witnesses...;  
b) Did the witness have an interest in the outcome or was he/she personally  
connected to either party;  
c) Did the witness have a motive to deceive;  
d) Did the witness have the ability to observe the factual matters about  
which he/she testified;  
e) Did the witness have a sufficient power of recollection to provide the  
court with an accurate account;  
f) Is the testimony in harmony with the preponderance of probabilities  
which a practical and informed person would find reasonable given the  
particular place and conditions...;  
g) Was there an internal consistency and logical flow to the evidence;  
h) Was the evidence provided in a candid and straight forward manner, or  
was the witness evasive, strategic, hesitant, or biased; and  
i) Where appropriate, was the witness capable of making an admission  
against interest, or was the witness self-serving?  
[16] In short, helpful considerations when assessing the credibility of witnesses  
include attitude and demeanor, prior inconsistent statements, external and internal  
consistency, motive to mislead, ability to record events in memory, and application  
of common sense to the evidence to consider whether it suggests the evidence is  
impossible, improbable, or unlikely.  
Page 6  
[17] As I review the evidence, I will provide additional commentary. I will say at  
the outset that where Anthony’s evidence conflicts with that of other witnesses,  
including Harding’s, I prefer the other witnesses’ evidence. As I will discuss in this  
decision, I found that Anthony’s evidence neither accorded with the documentary  
evidence nor with other witnesses’ credible evidence. Anthony’s’ shifting  
recollections, shifting blame, and variety of explanations and excuses does nothing  
to give the court any confidence in his evidence.  
Evidence and Findings of Fact  
Kenneth Anthony  
Business acumen and Relationship with Harding  
[18] The president of the Plaintiff company testified at length about his background  
and business as a developer in Barrington Passage, and about his relationship with  
Harding, who he described as his “best friend.” At the time of this transaction,  
Anthony estimated Harding had been his lawyer for over ten years, acting for his  
companies in 70 or more real estate deals. He only used other lawyers if there was  
a conflict of interest. Simply put, he said, Harding “had my back.” Harding had  
offices in Shelbourne and Barrington Passage, and lived near Anthony in Shelburne.  
Around the time of the purchase, in 2006 to 2007, they met two to four times a week,  
and talked several times a week.  
[19] The closeness of their relationship was one of the few things that Anthony and  
Harding actually agreed upon in their testimony.  
[20] Anthony described the Plaintiff company as a real estate business owning  
many properties. Anthony was involved with the day to day business, including  
“finding deals” and maintaining properties. He did not deal with financing, which  
was handled by his business partner Steven Lockyer, who did not testify.  
[21] Anthony described Steven Stoddart (“Stoddart”), a former Board official, as  
a good friend, whom he had known for 15 to 20 years. Anthony also said he had  
known Brian Holland (“Holland”), the Municipal Clerk, for 15 to 20 years. All of  
this testimony was given to suggest that the closeness of the players in this deal  
resulted in Anthony relaxing his requirements and being duped into forgoing the  
usual environmental diligence. I do not accept this, as I will explain in detail later.  
Page 7  
Environmental Assurances or Lack Thereof  
[22] Anthony said he learned six months before the RFP was circulated that the  
Property was going to be sold, through “word on the street.” He said he spoke to  
Harding, Holland, and Stoddart about the Property, with a view to having one of his  
companies purchase it. He described himself as like a “dog with a bone” in pursuing  
the Property, though he gave no specifics about these conversations.  
[23] Anthony intended to build condominiums on the Property. He testified that  
potential oil contamination was a major issue for him. Anthony knew there were gas  
pumps on the property, used to fuel school buses. He testified that he wanted a  
clean-up of the property before he would purchase it. He said he told this to Harding  
at a Tim Horton’s, or at Dan’s Ice-Cream, sometime well before November 20, 2006,  
in October or November. He said he also inquired as to what would happen if the  
Board did not clean up the Property. Anthony testified that Harding told him that  
the Board would have to pay if there was any pollution, saying “polluter has to pay”.  
[24] Anthony said he also spoke to Holland about the Property about three times,  
concerning the oil tanks and the air quality in the building. There is no documentary  
evidence to support his evidence of these alleged conversations. Harding and  
Holland deny that any such conversations happened. Anthony’s own emails and  
letters do not support his viva voce evidence about these alleged conversations.  
[25] In the face of the other evidence, Anthony insisted that he was given  
assurances that the Property would be “clean” by Harding and Holland prior to the  
presentation to the Council. Anthony maintained that these alleged assurances were  
separate and apart from anything in writing, or any discussions with Council. He  
insisted that extra-contractual verbal representations were made by Holland and  
Harding. I reject this claim given his lack of reliability.  
[26] It is also noteworthy that, despite alleging that Harding made such  
representations, Anthony did not name Harding as a defendant when he started this  
proceeding, but only referenced assurances by the Municipality and Holland;  
Anthony said Harding was his “very best friend at the time.” He testified that he  
knew in 2009, when he started this claim, and when he testified in 2012, that he had  
received these alleged assurances from Harding.  
[27] Anthony said he and Holland spoke on an unknown date before he submitted  
his proposals, and before the November 14, 2006, meeting, and that Holland gave  
him assurances at that time. However, both proposals submitted on behalf of his  
Page 8  
companies pre-dated November 14, 2006. Anthony was directed to his discovery,  
where he said he spoke with Harding between November 15 and November 30,  
2006. On direct, he was adamant that he had received assurances before November  
14, and he maintained that his recollection at trial was better than at discovery.  
[28] On discovery, Anthony indicated that the prior assurances were from Holland  
only. At trial, he said he thought the question was whether anyone else was present,  
not if others had given assurances. In the 460 pages of the 2012 discovery, he never  
mentioned Harding’s alleged assurances. He explained at trial that he was not suing  
Harding then. On discovery in 2014, he said assurances were given between  
November 14 and November 30. Finally, at trial, he insisted the assurances were  
definitely before the October 2006 RFP. There was a myriad of inconsistencies on  
this point. Anthony’s evidence has changed and developed over time in what appears  
to be a response to changing trial strategy.  
[29] Anthony agreed that if his discovery evidence was accurate, then any  
assurances would have been made after the two proposals were submitted, and after  
Holland’s letter indicating that the Municipality was not providing any  
environmental assurances. This evidence is in contrast with paragraph 15 of  
Anthony’s affidavit of October 15, 2018, where he stated that Harding told him in  
November 2006 that the Board would return the property “clean” to the  
Municipality.  
[30] Anthony’s version of these alleged discussions is a moving target, not only as  
to timing but as to location. In his 2014 discovery, he could not say where these  
conversations occurred. In his direct evidence at trial, he said they happened at  
Dan’s ice-cream shop or maybe Tim Horton’s. On cross-examination, Anthony said  
he was guessing, and in fact was not sure where they happened. The unreliability of  
this evidence further undermines the claim that any such assurances where made.  
[31] As noted earlier, the first RFP did not lead to an agreement, and a second RFP  
for the development and sale of the Property was issued in October 2006. The new  
RFP contained the following clause:  
2.3 Environmental Assessment  
The Municipality will not provide any environmental assessment on the property.  
Page 9  
[32] Anthony read clause 2.3 of the RFP before submitting a proposal. After  
speaking to Holland, he understood that no environmental assessment would be  
provided. Since he intended to tear down the school building, he was not concerned  
about its condition. However, Anthony said, he understood that the oil tanks would  
be dealt with by the Board.  
[33] In his evidence, Anthony distinguished the air quality and mold issues in the  
school building from soil issues on the property. However, this is not a distinction  
recognized by the RFP, or by any other witness. Nor did Anthony draw this  
distinction in conversations or correspondence prior to the purchase and closing.  
[34] After reviewing the RFP, Anthony wrote to Holland on October 2, 2006, to  
confirm that he was interested in purchasing the Property. The letter reads as follow:  
I am writing you in regards that I understand that there is a meeting  
this evening in regards to the Old High School. I wanted to reconfirm my  
position on my offer. I am still very interested although there seems to be  
a downturn in our local economy. There also appears to be 8 new  
apartments under construction and taxes have increased marginally. None  
of these issues concern my confidence in this project. It is all the more  
reason why we need development and more businesses here.  
I am trying to make this as easy as possible as I am taking most of  
the risks.  
1.Buy property as is, No Phase 1 or other major concerns that could be a  
Major problem if this is done.  
2.I look after tearing down old school, very expensive, I look after cost  
overruns, permits an [sic] I even put in my proposal if I don’t tear it down  
by a certain time, then Council can buy the property back from me at half  
price. I plan on tearing the old school down almost immediately and have  
no plans of leaving it standing or just sitting on it. To market this location  
properly, it needs to come down so people can view the land better.  
3. New development creates new jobs, tax base and people staying and  
buying local. I have the proven track record, the knowledge, the contacts,  
to bring more jobs and development here. Again, who else has brought  
companies like McDonalds, Atlantic Superstore, Tim Hortons, Shoppers  
Drug Mart, Subway, Movie Gallery, Great Canadian Dollar store, etc and  
the list goes on. It takes a lot of work, money and time I am willing to  
commit the above to keep Barrington going. We have started losing $$$  
again to Yarmouth. They have attracted new businesses and now it seems  
local people are doing more shopping there. We have to try and stop this  
trend and bring more businesses here and not only keep our people here but  
again attract Shelburne and Pubnico to shop here.  
Page 10  
4. The soccer field would be nice to have but it would be a political  
minefield. That is why I am not asking for the soccer field and highly  
recommend for the Municipality to keep it in their hands. It is but better for  
the community use and makes much more sense politically.  
I am available at XXX XXXX cell and XXX XXXX office anytime  
day or night.  
[Some content excised]  
[The foregoing quotation has not been edited for grammatical errors.]  
[Emphasis Added]  
[35] Anthony described this letter as his “sales pitch.” He said he did not think of  
it as a response to the RFP. Describing his stated willingness to purchase with no  
Phase I environmental assessment, he said it was “more in regards” to the air quality  
and asbestos in the school building, and he did not need a Phase I because he  
intended to demolish the building. I do not accept Anthony’s evidence on this point.  
It is obvious given the timing of the letter that this correspondence was in response  
to the second RFP. This is clear from paragraph one, where Anthony says he will  
buy the property “as is.”  
[36] Anthony wrote again to Council on behalf of his numbered company on  
October 30, 2006, setting out three options for the purchase of the Property. He  
confirmed in his testimony that his intention in providing three options was to be the  
successful bidder. The October 30, 2006, letter stated:  
Enclosed are our 3 options which is solely at the Municipality of Barrington choice.  
Option #1 – Offer $25,000.00 and Annex comes with it once it is in the  
Municipality of Barrington ownership. This option is for the whole property and I  
will be taking the old High School down and renovating the new into either condos,  
apartments, with maybe even some retail at the bottom levels.  
Option #2 – Offer $50,000.00 with deduction of $2,000 for every full or part time  
job that is created on that site within 24 months to a balance of 0 of 25 jobs are  
created.  
Option #3 – Offer $10,000.00 with the purchaser guaranteeing one of these 3 at the  
purchasers sole discretion.:  
A) A minimal of 24 unit Hotel (motel) commencing construction within 24  
months (from when Annex is turned over to purchaser)  
B) At least 20 to 35 full time jobs guaranteed within 24 months on this site.  
This would be a complete new business and not a relocation of an  
Page 11  
existing one. This could include WalMart, Canadian Tire, Empire  
Theatres, etc. which would easily surpass 20 jobs.  
C) An additional $75,000 to the purchase price, if either (A or B) is not  
delivered within the time frame as stated (24 months from when the  
Annex is turned over to the purchaser)  
…
This project would be a partner deal with myself (Ken Anthony) and Steve Lockyer  
(Halifax). We together run 3021386 NS Ltd. which is a multi million dollar  
company dealing in apartments and commercial realastate. Steve is a business  
person in Halifax who deals in condos having ownership or part ownership in  
present developments such as The Brewery Market – Halkirk Developments,  
Lexton Court condos, The Brickyard. He also is president of Cornwallis Financial.  
His partnership and contacts on this large project would ensure the success as well  
as the right mix of commercial tenants.  
[The foregoing quotation has not been edited for grammatical errors.]  
[37] Anthony said the letters of October 2 and October 30, 2006, make no reference  
to environmental issues because in his mind the only such issue related to the  
building, which he intended to have demolished. He believed that the Board would  
return the Property to the Municipality in a clean state, based on representations he  
claimed he received from the Municipality and from Harding.  
[38] In the letters of October 2006, Anthony was asserting his business acumen.  
This is contradictory to his attempts at trial to describe himself as an uneducated man  
reliant on all of those around him. I do not accept his attempts to depict himself as  
an unsophisticated person who was duped in this process. He has demonstrated he  
was far from a neophyte in the bidding and development process.  
[39] Anthony testified that Council accepted option 1. On November 14, 2006, he  
wrote to Council, to confirm the purchase of the “old high school”, enclosing a  
cheque for $25,000. He wrote:  
Thank you for the recent motion in regards to the purchase of the Old High  
School. I am looking very much forward to do this project and am anxious to  
proceed immediately.  
I have enclosed a copy of the cheque I issued (in trust to Don Harding) for the  
amount of $25,000.00. I have also enclosed a copy of my insurance starting  
tomorrow so I will take over full responsibility of liability and normal insurance  
coverage.  
Page 12  
The demolition permit has been paid and applied for and will be issued only  
after Council approves the sale. This demolition permit can be confirmed by Mr.  
Holland.  
I am asking Council for the following misc items:  
1. Power be shut off immediately for the Junior High so we can tear it down  
commencing this Monday morning.  
2. Within approximately 3 months, a letter from Jacques Whitford stating the oil  
tanks have been removed and it is acceptable, no contamination. The Old Annex  
building, I would expect to be turned over in approximately 3 months and my plans  
are again to tear it down immediately when passed over.  
3. Approval to commence demolition and renovations immediately. I want the old  
Junior High down by Dec. 1st/06. I also want to get aerial photos with the building  
down before snow falls which his why I am in a rush to start marketing.  
4. Council to allow work on condo bylaws that would make it acceptable for at  
least 12 condos be hooked up on 1 sewer system. I know that 12 units would be  
owned by each individual condo owner and from there go in a common area sewer  
line owned by the Condo corporation and then in the Municipal sewer system.  
There are no condo bylaws and I am obviously starting to commence on a demo  
site ASAP for viewing for sometime in January/07.  
5. The lawyer Don Harding can look after both sides on this land transaction.  
Geomap is starting surveying on Monday. Most of the property has been surveyed  
but a new line approximately 25 feet from the soccer filed parking lot will have to  
be surveyed as shown.  
6. I understand the Chamber will be using the site Dec. 2nd and I am ore than happy  
to work with them and have a heated room available as well for that evening.  
[The foregoing quotation has not been edited for grammatical errors.]  
[Emphasis added]  
[40] Anthony testified that at the time of this letter he believed that Harding was  
representing him. He said he had never bought property without environmental  
assurances from the vendor. The November 14 letter makes the first reference to an  
environmental assurance, in the nature of a “Jacques Whitford” letter, with specific  
mention of oil tank removal. There is no reference to prior assurances from Holland  
or Harding. Having submitted a proposal with no assurances offered or requested,  
Anthony now sought a “Jacques Whitford” letter or assurance. (Jacques Whitford is  
an engineering and consulting company whose services include environmental  
assessment.)  
Page 13  
[41] On November 15, 2006, Holland emailed Harding indicating acceptance by  
the Municipality of the Anthony Properties proposal:  
Last night Council agreed to accept the proposal on Anthony Properties Ltd for the  
purchase of the former BMHS property.  
Please provide an Agreement of Sale for the property that will include the  
following:  
1. Sale price $ 25,001.  
2. Purchaser responsible for survey and title migration costs.  
3. Description is contained in the RFP document and will be confirmed by the  
survey.  
4. The Annex property will be included in the sale and transferred together with the  
rest of the property as soon as it is available from the School Board.  
Also, Council approved Mr. Anthony’s request for permission to begin demolition  
of the old “junior high school” portion of the buildings right away.  
Thyank you,  
Brian  
[The foregoing quotation has not been edited for grammatical errors.]  
[42] Prior to this email there are no documents indicating Harding was involved in  
the transaction. The evidence indicates that Harding was not involved in this  
negotiation or in the formation of the agreement until Holland asked him to prepare  
the APS. Harding forwarded Holland’s email to Anthony on November 20, 2006,  
with the question, “Anything else you wanted in there?” Anthony testified that in  
response, he wrote, by hand, a fifth item on a printout of the email as follows:  
5. Letters from Jacques Whitford the land is clean and up to environmental  
standards.  
Close Jan 22/06  
[43] Anthony testified that he delivered the printed-out email, with his additional  
notation, to the front desk at Harding’s office, on November 20, 2006. Anthony  
testified that he wanted to make sure the land was contamination-free despite his  
response to the RFP expressly indicating that there would be no environmental  
assessment provided by the Municipality. He testified that he never discussed this  
with Harding, then or later.  
Page 14  
[44] On November 15, 2006, Darryl Wilson, who worked for the insurance  
company Bell and Grant had emailed Holland and others, ostensibly to suggest the  
Municipality include certain requirements in the APS.  
[45] Mr. Wilson’s email included suggestions to Holland concerning the contents  
of the APS:  
I offer my thoughts pending Cowan’s feedback. The Municipality should have its  
solicitor structure a formal written legal agreement with Mr. Anthony surrounding  
planned activities in and around the District’s property/building prior to the formal  
transfer of the property/remaining building to Mr. Anthony. The agreement should  
contain an indemnification/hold harmless clause in favor of the District. As well,  
the agreement should have an insurance clause outlining the minimum types and  
amounts of coverage (as set out by the District and its solicitor) to be carried out  
not only by Mr. Anthony but also any contractors (including R T Excavating)  
performing operations on the site on his behalf. Insurance outlined in the agreement  
as required should not only include general liability (with removal/weakening of  
support inclusions removed ), non-owned auto liability, and auto liability, but  
depending on exposures present, should also include asbestos/lead abatement  
liability, and environmental liability. The agreement should require that the district  
be shown as Additional Insured on policies where permitted. As well, the District  
should consider having the agreement require Mr. Anthony to carry Builders Risk  
coverage on the building including the District’s interest in the event he or his  
contractor were to damage the portion of the building to remain standing.  
As an aside, the District should require the School Board to supply documentation  
evidencing no contamination on the site prior to the property reverting to the  
District – this may have already been done – especially where the School Board  
have been conducting fueling operations there.  
[The foregoing quotation has not been edited for grammatical errors.]  
[46] In a subsequent email to Harding, on November 20, 2006, Holland provided  
him with the insurer’s comments:  
We have been advised by the insurance company to include certain requirements  
in the Agreement of Sale to Anthony Properties Ltd. Please review their comments  
attached, and include the requirements you believe necessary. Also attached is a  
copy of the insurance certificate received from R&T excavating Ltd. They are the  
company doing the demolition of the old junior high school.  
[The foregoing quotation has not been edited for grammatical errors.]  
[47] Anthony indicated at trial that he did not see Mr. Wilson’s email until  
discovery. Asked if he was certain of this, he said, “120% fact not an opinion.” He  
Page 15  
then laughed and said “sorry.” This was a sarcastic response after receiving the  
court’s decision about the refusal of the expert opinion from Mr. Finley. I will  
address this email and the fact Anthony did not review it later in this decision. This  
is not the only example of Anthony’s sarcastic approach to his testimony. Anthony  
noted in his testimony that he addressed a letter to Harding, “Dear Don (Q.C.)”,  
volunteering that Q.C. meant “Quite Costly.” There were many interjections of this  
kind by Anthony during his direct and cross-examination, giving the impression that  
he was not taking the proceeding seriously.  
[48] On November 21, 2006, Anthony wrote to Holland. Amongst other issues, he  
raised the matter of the tanks:  
I do have a few questions though, in which I was assured the tank was empty. Please  
re confirm that Steven Stoddart has had the tank emptied and without any oil, gas,  
etc as Steve was supposed to have stated. I believe then there should be no issues.  
I trust that Steve S and the School Board have started the environment concerns  
and commencing to get Jacques Whitford in as promised. I was also going to ask  
when the 3 months or closing up the Annex would taking place. I am in no major  
rush but it would for development purposes be nice to have the Old Annex out of  
the way.  
We will be continuing to tear down the old School tomorrow morning as well as  
commencing on the model suite in the Senior High. We will be staying away from  
the tank until the School Board completes there work and making sure it is up to  
Environmental regulations.  
Please keep me posted and I will call Steve early Tuesday morning.  
All the best, and again, We will not be doing any digging into the ground or going  
over the site where there is a tank.  
regards kb  
[The foregoing quotation has not been edited for grammatical errors contained in  
the original.]  
[49] Anthony confirmed that he sent this email to ensure that the Board was going  
to clean up any contamination and obtain a “Jacques Whitford” report.  
Parenthetically, it was Anthony personally following up about environmental  
concerns. It is noteworthy that he was not doing this through Harding, who by his  
own evidence, he understood to be his lawyer, and who, he testified, he expected to  
handle matters of this kind. The implication is that he in fact understood Harding’s  
role to be limited, or, at the least that he did not seek Harding’s advice on the  
environmental issue. It is also noteworthy that Anthony’s representations and  
agreements in the proposal were different than after the Plaintiff’s successful bid;  
Page 16  
he first agreed to an “as is” sale, then began demanding Jacques Whitford reports  
and environmental assurances after acceptance of his successful bid.  
[50] Anthony began work on the Property in November 2006. He fenced off an  
area and started moving in surveyors, excavators, and electricians by November 14.  
At that point, there was no APS signed yet, and he did not yet own the property.  
However, Anthony said, he had “assurances” and was prepared to demolish the  
school, in order to avoid tax implications by finishing demolition by December 1.  
This is before Harding was even asked to prepare the APS on November 15, 2006.  
This is another example of Anthony forging ahead and not seeking legal advice.  
[51] On November 21, 2006, at 8:43 a.m., Holland emailed Stoddart about the  
situation on the Property. The message was cc’d to Anthony:  
Mr. Anthony has been informed of your concerns and has told me he will call you  
this morning.  
At the present time he is demolishing the old Junior High School and removing the  
debris from the site. He will also be starting construction of a “model suite” in the  
Senior High School.  
He will not be demolishing or constructing anything near the oil tanks in the Annex  
or the Senior High School.  
The demolition will not affect the area around the oil tank behind the Junior High  
School as that tank has been fenced off so the machinery will not intrude on it.  
In any case you informed me by email on November 1, 2006 that the oil tank behind  
the Junior High School had been pumped out, so there can be no contamination  
from it. Nevertheless, the sooner it is removed and the letter from Jacques Whitford  
is provided, the better.  
Thank you for your cooperation in this endeavour.  
Brian  
[The foregoing quotation has not been edited for grammatical errors.]  
[52] Anthony said he understood this was Holland following up on Anthony’s  
earlier email setting out his expectations of the Board. Anthony forwarded the email  
to Harding on December 1, 2006.  
[53] Anthony sent an email to John Hogg (“Hogg”), at the Board on November 30,  
2006, in regard to the proposed rental of the annex building, on the Property by the  
Board. In that email, Anthony referred to the oil tanks:  
Page 17  
The School Board is responsible for taking out the in-ground oil tank where the  
buses gas up and solely responsible for the clean-up and a letter from Jacques  
Whitford were acceptable qualified company saying it is environmentally clean. I  
will then allow the tank to stay there until the end of this lease and therefore the  
Board doesn’t have to remove it within the next 60 days as planned or promised.  
Therefore, I will be proposing “purchasing” the property prior to the tank removal  
but guarantee from the Mun. of Barrington and the School Board and it will be  
cleaned up prior to vacating the premise.  
[54] Anthony also forwarded this email to Holland on December 5, 2006, but  
neither copied nor forwarded it to Harding. Anthony said he was writing to those  
individuals to ensure the property was clean before being passed to the Municipality.  
Anthony did not receive a reply to the email. In referencing the lack of response, he  
said “sooner or later silence becomes betrayal.” There is no documentation or  
correspondence to support Anthony’s stated belief that the property was going to be  
“clean.” In fact, his emails after the fact show he had a concern about oil tanks, and  
knew it was the Board he had to discuss this with. He was again taking the lead and  
not involving Harding.  
[55] Anthony received an email from Stoddart, copied to Hogg and Phil Landry,  
on December 6, 2006, in which Stoddart spoke about turning the Property back over  
to the Municipality, with a tentative date for the transfer on or before January 22,  
2007. Anthony said he had assumed the Board owned the property, but learned from  
Harding that the Board was transferring it back to the Municipality. Anthony  
received an email from Stoddart apparently replying to Holland:  
Hi Brian  
I just wanted to clarify that I will be communicating with you until the property is  
returned to the Municipality. Please see Ken’s email below.  
Thanks  
Steven Stoddart  
Director of Operations, Tri-County Regional School Board…  
[56] This email was apparently sent to Anthony in error, being intended for  
Holland at the Municipality.  
[57] The state of relations between Anthony, the Municipality, and the Board  
during the winter of 2006-2007 is illustrated by an exchange of correspondence on  
January 22, 2007. Stoddart had forwarded Holland the following letter, respecting  
the hand over of the Property:  
Page 18  
Dear Mr. Holland:  
We have removed the diesel pump and tank from the property. Everything appears  
to be okay and soil samples have been taken and sent to the lab for analysis.  
I am prepared to turn the property over to the Municipality today, January 22, 2007,  
under the following condition:  
I need to have use of the old board office until the end of February 2007. I  
will have the power and oil disconnected on or before that date.  
I require the use of the facility as it is taking some time to get the phone lines  
connected at our new location and we still have material in the building we need to  
remove.  
I hope this meets with your satisfaction.  
[The foregoing quotations has not been edited for grammatical errors.]  
[58] Holland forwarded Stoddart’s letter to Anthony with the query, “[d]oes this  
cause any problems.” Anthony replied:  
Dear Brian, Thanks for your comments on the drawings.  
In regards to Steve S. letter, I find the environment to be very weak. I need  
better assurances and more paperwork then, …it is being reviewed and everything  
appears to be OK. Please confirm how long the soil samples will be back clean of  
any environmentally concerns. As for the end of Feb/07, I had originally planned  
on taking the Annex building down by the end of Jan/07 for development purposes  
and using the main entrance doors on the Senior High. Are they prepared to pay  
any rent as the last time, I talked to John Hogg, rent was going to be $600.00 plus  
HST per month if they needed it.  
Please review and let me know as again, I expected the land to be available  
by Jan. 22nd/07 and clean with proper paperwork that eliminated any  
Environmental concerns.  
Best regards KB Anthony  
[Emphasis Added]  
[59] The following exchange of emails ensued:  
From:  
To:  
Brian Holland  
Ken Anthony  
Sent:  
Monday, January 22, 2007 1:58 PM  
Former BMHS Property  
Subject:  
Page 19  
Steve Stoddart just called regarding the old high school. He says he cannot deal  
with a “third party” and must deal with the Municipality.  
He wants to have the closing postponed to February 2nd, He believes he can get  
everything out by then and the phones changed over to the their new location. He  
will have the paperwork on the oil tanks by February 1st. As soon as I receive it, I  
will copy it to you.  
If this is satisfactory we will aim for that date.  
Brian  
…
From: Ken Anthony  
To:  
Brian Holland  
Sent: Monday, January 22, 2007 2:35 PM  
Subject: Re: Former BMHS Property  
Thanks makes more sense, let’s hold off until Feb. 1st and keep it easy and clean.  
No problem here as long as he has the proper paperwork on the oil tanks. Will he  
have the above ground oil tank for the Annex gone? Thanks KB  
…
[60] Anthony testified that when he emailed Holland on January 22 at 1:38 p.m.  
indicating that he found the “environment to be very weak,” he was referring to the  
fact that soil samples were being delivered to the lab for analysis, and that this was  
not the type of report he wanted. He said he wanted “zero environmental concerns,”  
meaning no oil tanks. By contrast, by “environmental issues” he meant the air  
quality of the buildings. As of January 22, 2007, he said, he expected something in  
the nature of a Jacques Whitford report. However, this was never made explicit in  
the above communication and is in contrast to the express terms of the RFP. The  
issue of environmental assurances now became a moving target over the following  
months and years, as shown in emails and Anthony’s testimony. He began by  
bidding on an RFP with no environmental assurances and accepting “all the risk” to  
demanding escape clauses in the APS and letters of comfort all while “getting a steal  
of a deal.”  
[61] Anthony emailed Holland on January 29, 2007, at 10:45 a.m. inquiring “how  
are we doing on the environment?” Holland responded on January 30 at 8:58 a.m.,  
indicating that Stoddart had promised to have the documentation on February 1,  
2007. Anthony responded at 9:36 a.m. that “the only outstanding issue is the  
Page 20  
Environment concerns which I would like proper paperwork. You can understand  
any lender would obviously want this as well.” This is one of the only emails on the  
topic copied to Harding, and the first time he mentions a lender in the face of a  
$25,000 deal.  
[62] On February 1, 2007, at 8:25 a.m., Holland emailed Anthony directly. Harding  
was not copied on this email, which stated:  
Sorry I didn’t reply sooner.  
Since the environmental information will not be available until today it appears we  
have no choice but to delay the date of sale. Friday, February 16, would be an  
acceptable closing date. As soon as the environmental information is received it  
will be forwarded to you.  
Regards,  
Brian  
[63] Anthony copied Harding on this exchange. Anthony said his references to  
paperwork meant a Jacques Whitford letter confirming that there was no oil  
contamination, but that was not specifically stipulated in the email. Anthony never  
received a report from Jacques Whitford, but did receive an AGAT Laboratories  
report addressed to the Board on February 5, 2007. Based on this report, Anthony  
concluded that there was no concern from three oil tanks located at the annex  
building, the senior high, and the junior high, respectively. AGAT Laboratories did  
not find any hydro-carbon contamination detectable in the 12 samples they received.  
Anthony testified that he still expected a Jacques Whitford letter respecting the entire  
Property to follow, though he did not tell anyone this. He instructed Harding to close.  
[64] Parenthetically, Anthony’s testimony appears to be contrived and crafted in  
this regard. The APS includes no requirement for a letter from Jacques Whitford  
indicating that the entire Property was free of any contamination. What it does allow  
is a dissatisfied Anthony to walk from the deal. Anthony received the AGAT report  
and then instructed Harding to close the deal. Anthony could have refused to close,  
but did not. Throughout the negotiations, however, Anthony made statements in  
emails, letters, and proposals indicating that he would assume all the risk in the  
transaction. While Anthony claimed that he relied exclusively on his lawyer, and  
that he was not familiar with legal requirements, the evidence also indicates he was  
an experienced real estate developer, who was comfortable communicating directly  
with a variety of actors connected to this deal, usually without copying his lawyer,  
and certainly not seeking legal advice. He also had an APS which he admitted he  
Page 21  
did not read through. It is puzzling how someone with his real estate portfolio would  
treat an APS in such a casual manner. Furthermore, the evidence is clear that  
Anthony did not rely on Harding for environmental advice. Harding was not an  
expert in that area, nor did Anthony think he was.  
[65] It was put to Anthony that he closed the property transaction without receiving  
a Jacques Whitford letter; he responded that he did not have any real concerns, and  
he did not follow-up, “so my bad on that.” Exactly! As I will explain further, I do  
not accept his attempts to rewrite history and foist his decisions to purchase a  
property “as is’ on to his lawyer when all other attempts at redistributing the liability  
have failed.  
Environmental Knowledge  
[66] Anthony conceded that he was aware of at least three tanks on site. He also  
knew the Property was actively used as a fueling station for buses. He denied being  
concerned about the risk of contamination, however, saying “no, not really,” because  
he understood the Board was giving over the Property, and it would be “clean”.  
Again, he attempted to explain his concern about environmental issues as being only  
in relation to the buildings, and not the soil, as he says he was given assurances.  
Absolutely no other witness or documents support these alleged assurances.  
[67] The evidence indicates that Anthony had access to information that could have  
put him on notice of potential contamination concerns. On August 30, 2000, Jacques  
Whitford was retained by another company of Anthony’s, K&J Anthony Properties  
Limited, to conduct a Phase I environmental site assessment of properties at 3723  
and 3737, Hwy No. 3, Barrington Passage. The executive summary of the  
assessment included the following relevant portions:  
Between August 8 and 14, 2000, Jacques Whitford Environmental Limited (JWEL)  
conducted a Phase I environmental site assessment (ESA) of the properties and  
buildings located at 3723 and 3737, Hwy no. 3, Barrington Passage, Nova Scotia.  
Based on the information gathered and on observations made during this  
investigation, the Phase ESA revealed evidence of potential contamination.  
Potential contamination is based on the following:  
Potential on-site migration of petroleum hydro-carbons from  
former/existing underground tanks on adjoining properties to the North  
(Barrington Municipal High School Board Office) and West (T.L. Swaine  
Ltd.).  
To address potential contamination, we recommend the following:  
Page 22  
Conduct a Phase II ESA to investigate the potential on-site migration of  
petroleum hydro-carbons from off-site sources.  
[68] Anthony agreed that he understood that the references to adjoining properties  
included the Property. It was put to Anthony that if these risks existed in 2000, there  
would be similar risks with regard to the Property in 2006. He confirmed that he  
knew there were oil tanks on the site, but as to the reference to former and existing  
underground tanks on the adjoining properties, he said, “I never picked up on that.”  
Again, this is not credible evidence. This is in contradiction to his “hands” on  
approach to his business dealings. In any event, Anthony alone had this information;  
not Harding.  
[69] The next page of the 2000 Jacques Whitford report summarized the findings  
and conclusions, and noted that adjoining properties were potential sources of  
contamination. The level of environmental contamination and concerns were said  
to be moderate. In the “findings” section, it stated:  
“Former/existing underground tanks on the adjoining properties to the North  
(Barrington Municipal High School, School Board Office ) and West (T.L. Swaine  
Ltd.) represent potential sources of petroleum hydro-carbons which may have  
impacted the subject properties”.  
[70] In fact, the number of oil tanks on the Property is noted at page seven of the  
report:  
Barrington Municipal High School (adjoining property to the north)  
Five tanks are registered to this property. Two of the tanks are listed as  
“removed” and were reportedly underground tanks. The three remaining tanks  
included two underground tanks and one above ground tank, which are listed as  
“currently in use”.  
The former/existing underground tanks on this property are considered  
upgradient to the subject properties and represent a potential environmental  
concern.  
[71] Anthony said it was unlikely that he read this part of the report, since his  
“normal practice” was to read only the executive summary. He would have the court  
accept that his “normal practice” was to skim reports and legal documents. If this is  
the case, this is foolhardy; if not, his evidence was neither credible or reliable. Either  
way, he had the information, and was the only party who did. Harding did not.  
Page 23  
[72] Attached to the August 2000 Jacques Whitford report was a print-out dated  
January 3, 1996, showing the petroleum storage tank registration. This document  
indicates that two underground tanks had been removed, having been installed in  
1956 and 1968. Two other tanks were still in place, installed in 1983 and 1991, and  
another was underground, installed in 1989. This suggested that the Property had  
held five tanks, two of which had been removed by 1996. After receiving this report  
in 2000, Anthony obtained a Phase II report.  
[73] Anthony agreed that in his second proposal, dated October 2, 2006, he had  
proposed to buy the Property “ ‘as is’, No Phase I or other major concerns that could  
be a Major problem if this is done.” Anthony acknowledged that “as is” meant that  
he would accept the Property in the condition that it was in. He added the proviso,  
however, that he accepted this because he expected reassurances in regards to the  
tanks beforehand.  
[74] Anthony acknowledged that, in saying that he would not require a Phase I, he  
was obviously indicating that he would also not require a Phase II. He did not agree,  
however, that it followed that any problems that arose on the Property after closing  
would have been his to deal with. He maintained that he expected a Jacques  
Whitford letter confirming the property was “clean.” However, he admitted that  
there was no reference to a Jacques Whitford letter in the October 2, 2006, proposal.  
Anthony nevertheless claimed that Holland told him that any tanks on the Property  
would be removed and the Property would be “clean.” Holland denied making any  
such statement. Where Holland’s evidence differs with Anthony’s, I accept  
Holland’s. There is no other evidence supporting Anthony’s claims. Further, his  
conduct before the deal belies this assertion.  
[75] As described earlier, Anthony responded to the original February 2006 RFP.  
The Municipality rejected his proposal of October 2, 2006, by letter from Holland  
dated October 10:  
Dear Mr. Anthony:  
RE: FORMER B.M.H.S. PROPERTY PROPOSALS  
After much research Council has reviewed the proposals received on this property  
and has decided not to accept the proposals.  
Because of the strong sentiment expressed by the community, it is necessary that  
the Municipality retain the track and field property at the western end of the former  
Barrington Municipal High School. As a result this property will not be sold.  
Page 24  
Also, it has taken some time for the Municipality to obtain agreement from the Tri-  
County Regional School Board for the return of the Annex property at the eastern  
end of the school. The School Board has now agreed to return this property and this  
property will be sold by the Municipality as part of the former B.M.H.S. property.  
Also, the Municipality has investigated requirements for environmental  
assessments. As a result Council has determined that the Municipality will not  
complete any environmental assessments on the property.  
As a result of the information obtained and the change in circumstance, the  
Municipality will not be accepting your proposal that has been previously submitted  
on the property.  
The Municipality will be re-advertising the sale of this property in the very near  
future and will again be seeking proposals on the specific property that is now  
available for sale.  
Thank you for your time and consideration in this matter. It is much appreciated.  
[76] Importantly, the following paragraph deserves particular emphasis:  
Also, the Municipality has investigated requirements for environmental  
assessments. As a result, Council has determined that the Municipality will not  
complete any environmental assessment on the property.  
[Emphasis Added]  
[77] Anthony received this letter. On October 12, 2006, Holland wrote to advise  
him of a further RFP on the Property. As noted earlier, the October 2006 RFP stated,  
at section 2.3:  
2.3 . Environmental Assessment  
The Municipality will not provide any environmental assessment on the property.  
[78] This statement did not appear in the first RFP. Anthony acknowledged in his  
testimony that this problem was not a surprise to him. It was clear that the other  
contracting party, the Municipality, was not providing environmental assurances.  
Nevertheless, he submitted a proposal on October 30.  
RFP and Knowledge Prior to Retention of Harding  
[79] As has been described, the genesis of the APS was an RFP process initiated  
by the Municipality. I have described Anthony’s evidence that he thought the Board  
owned the Property. While he purported not to recall the contents of the February  
RFP, he agreed that section 1.1 clearly indicated that the Property was owned by the  
Page 25  
Municipality, and that the Board would return the Property to the Municipality in  
early 2006. He agreed that it was clear from the RFP that it was the Municipality  
seeking the proposals.  
[80] While he said he did not recall the contents of his response to the first RFP,  
Anthony was referred to an undated offer by Anthony Properties of $25,000 which  
he acknowledged was his response. He said the figure of $25,000, was based on his  
expectation of the cost of tearing down the old school, as well as “taxes, costs  
overruns, environmental, etc.” He said that by “environmental” he meant the  
building, not soil issues. He agreed that this distinction was not specified in the bid,  
and that he neither sought nor received any advice from Harding before he submitted  
the proposal.  
[81] Although he claimed not to recall, Anthony apparently met with Council after  
submitting the original proposal, judging by an invitation from Holland dated May  
25, 2006. The proposals from the first RFP were evaluated by Holland in a  
memorandum dated August 2006. East Bay Realty, unlike Anthony Properties,  
indicated that the Municipality would be responsible for providing a satisfactory  
environmental assessment and appraisal. Anthony Properties, by contrast, indicated  
“no environmental assessment or evaluation required.”  
[82] Anthony claimed to recall the second RFP, though not the first. There is a big  
difference: the second bid indicated that the property was “as is.” This is another  
example of his selective memory and his tendency to tailor evidence regarding his  
stated assumption of risk. As has been noted, he denied recall of many events, and  
denied reading materials which would be unhelpful to his case.  
Retention of Harding  
[83] Harding was approached by both Anthony and the Municipality to represent  
them concerning the transaction of this property. Harding wrote to Anthony on  
November 22, 2006, setting out the conditions of his dual retainer:  
I have recently discussed with you acting for you in the proposed purchase of  
certain real estate as noted above. Subsequent to our conversation I have also been  
requested by the Vendors to act on their behalf in the transaction.  
A solicitor may so act for both parties if both parties consent and the lawyer advises  
as follows:  
a) that the lawyer intends to act in the matter not only for that client or prospective  
client but also for one or more clients or prospective clients;  
Page 26  
b) that no information received from one client respecting the matter may be  
treated as confidential with respect to any of the others;  
c) that if a dispute develops in the matter that cannot be resolved, the lawyer  
cannot continue to act for any of the clients and has a duty to withdraw from  
the matter, unless they agree, preferably in writing, before the lawyer begins to  
act, that the lawyer may continue to act for one of them even if a dispute  
develops in the matter.  
Although we do not anticipate that a conflict will arise in this transaction should  
one arise it will then be necessary for our firm to withdraw entirely from the matter,  
and refer both parties to separate solicitors.  
If you are in agreement with this, kindly sign and return a copy of this letter  
signifying consent thereto. A similar consent is being obtained from the Vendors.  
Please give me a call if you wish to discuss this matter further.  
[84] Anthony confirmed that he recognized the letter, and his signature on it,  
though he could not confirm the date. He said he signed the letter because Harding  
asked him to, but did not discuss the document with Harding. Once again, I found  
this claim not to read documents to be a crafted response intended to disassociate  
himself from any responsibility.  
[85] Anthony testified that Harding never explained the implications of his role as  
a lawyer acting for both parties. He said Harding never told him that he was not  
going to be giving advice and would only put the agreement into written form.  
However, it is clear from the evidence that Anthony never retained Harding, nor did  
he seek his advice prior to bidding on the two RFPs.  
[86] Harding addressed the dual retainer in his affidavit dated October 5, 2018:  
57.  
I had no involvement in the offer, negotiation, or acceptance of the terms of  
purchase and sale, which had been agreed to between the parties. I did not provide  
any advice to either party about what should or should not be included in their  
agreement nor did I provide advice as to the benefits or risks associated with any  
terms they instructed me to include.  
…
60.  
Because of my dual retainer on behalf of 386 NSL and the Municipality, I  
did not give advice to either party concerning the form or content of the Agreement  
of Purchase and Sale (“APS”) or steps they might respectively take to protect their  
positions. My role was to reduce the terms of the accepted offer to written form.  
[87] There is no apparent dispute that Harding did not negotiate the deal, but did  
reduce its terms to writing. More will be said about Harding’s role. I do not accept,  
Page 27  
however, that he was simply a scribe for the parties. But, it is clear on the face of the  
various communications that Anthony had direct contact with Holland and others,  
and did not involve Harding, or even inform him of the discussions leading up to the  
acceptance of the Plaintiff’s bid.  
[88] Anthony signed the APS as President of the Plaintiff company on November  
30, 2006. Anthony said he retrieved the APS from Harding’s office and returned it  
after signing. He and Harding never discussed its contents. He also testified that he  
did not read the document, but merely “perused” it and signed it. The school  
demolition had already been completed when the APS was signed on November 30.  
[89] Harding’s evidence does not correspond to Anthony’s recollection. Harding  
said they did discuss the APS. As to the communications between signing and  
closing, Harding’s affidavit states, at para. 69:  
Between the signing of the APS and closing, Anthony, Stoddard and  
Holland communicated directly among themselves concerning any issues arising  
on the transaction. I was not involved in those communications and, typically, was  
not copied on written correspondence.  
[90] As discussed earlier, Harding sought Anthony’s input into the APS by e-mail.  
Anthony’s handwritten note on the printed out email to Harding demanding a letter  
from Jacques Whitford concerning the oil tanks, and requiring that everything be up  
to environmental standards, is not reflected explicitly in the APS. However, clause  
9 permitted the Plaintiff to refuse to close if environmental information provided  
was unsatisfactory:  
9.  
The Vendor makes no representations about the condition of the property  
but agrees to obtain from the School Board and/or their consultants an opinion as  
to the removal tanks and the condition of the property being satisfactory to the  
Purchaser.  
[91] Anthony denied reading clause 9.  
[92] Clause 12 of the APS dealt with insurance. It stated:  
12. The Purchaser agrees to provide the Vendor with such proof of insurance as  
required by the Vendor with respect the Purchaser and its agents use and demolition  
of the property prior to the Purchaser commencing work or taking possession of the  
premises.  
Page 28  
[93] This clause was not referenced in any communication between Anthony and  
Holland respecting the APS. However, Anthony said Holland had indicated that he  
must insure the Property before the school was demolished. Harding did not speak  
to Anthony about clause 12. As noted earlier, the school was already demolished by  
the time the APS was signed. Anthony was taking steps immediately after his bid  
was successful to work on the Property. He was focused and determined.  
[94] Anthony denied being informed that Harding’s dual retainer was limited to  
the conveyancing aspects of the property transaction. He denied Harding’s evidence  
that he did not discuss simple legal concepts with Anthony, although he could not  
say what was meant by a “simple legal concept.” Anthony also testified that he spoke  
to Harding about Phases I and II environmental assessments, but this evidence was  
vague, in that he said he would discuss these issues in terms of incorporating them  
into an APS so that he was “solid on paper” and “along these lines.”  
[95] With his experience in residential and commercial developing, Anthony  
acknowledged he understood that in order to have terms included in the APS, he  
would have to advise his lawyer. He acknowledged that Harding would not prepare  
an APS based on his own knowledge, but based on information Anthony would  
provide to him. Anthony also acknowledged that he had drafted agreements himself  
in the past. Anthony acknowledged that an APS was a significant document, whose  
preparation included aspects of due diligence, financing, inspection, and insurance.  
He agreed that due diligence included such things as septic and environmental  
testing, and that environmental testing included soil and hydro-carbons. He  
understood that a Phase I report included document review and ascertaining if there  
was a possibility of contamination, but not digging in the soil, which would be a  
Phase II matter.  
[96] Anthony admitted on cross-examination that he handled environmental  
concerns, not Harding. When he had questions about the environmental condition  
of a property, he would look to consultants such as Ecco or Jacques Whitford. This  
was illustrated by his review of a previous closing, where he did not involve Harding  
in these aspects of the deal.  
[97] Despite all this, Anthony alleges that Harding failed to recommend that he  
obtain a Phase II for the subject property. He agreed that his expectation was  
premised on Harding having a role in that aspect of the Property deal. He agreed  
there was no documentary evidence supporting any such reliance on Harding.  
Despite lack of evidence that he had ever consulted Harding regarding  
Page 29  
environmental assessments, however, he mentioned that if there were any red flags  
in environmental reports, he would do so. Beyond this bare assertion, there was no  
evidence of this. For instance, when Anthony initially said that he found “the  
environment to be weak” in early 2007, he did not consult Harding. After extensive  
cross-examination, it was clear that Anthony had experience with environmental  
reports. He agreed Harding was not an environmental expert. The Plaintiff’s  
assertions about Harding providing environmental assessment advice is not  
supported by his own evidence, and is in direct contrast to Harding’s own viva voce  
and affidavit evidence. He ultimately agreed he could not point to a time where he  
looked to Harding to give him advice on environmental assessments. It is clear that  
Anthony dealt with such matters himself, although as has been noted, he claimed not  
to read beyond executive summaries.  
[98] Anthony acknowledged that he understood (without being advised by  
Harding) that if he was not satisfied with regards to due diligence, he would lose his  
deposit. Anthony also knew that everything had to be completed for the closing date,  
because after closing, any issue that arose was at his risk. He understood that the  
concept of “buyer beware”. The RFP was clear that the property was being sold “as  
is.”  
[99] Anthony swore an affidavit on October 15, 2018, in support of his opposition  
to a Summary Judgment Motion. At paragraph 77 he stated:  
And the Property transaction is a perfect example of a circumstance where  
Harding’s advice was critical. Had Harding advised me that the Board was not  
going to be providing the Muni with any assurances regarding the environmental  
cleanliness of the whole Property, I would then have been able to use my due  
diligence knowledge and been able to demand a Phase I or Phase II assessment be  
provided to me by the Board prior to the closing of the purchase. But I was never  
advised by Harding that the Muni wasn’t going to be getting what he had earlier  
told me they would be getting.  
[100] This flies in the face of Anthony’s own evidence that he did not rely on  
Harding and that Holland gave him direct assurances. Anthony’s affidavit evidence  
and trial testimony is a veritable cornucopia of unsupported claims, contradictions,  
and inconsistences.  
[101] Evidence of previous transactions demonstrates that Anthony would obtain  
environmental reports of his own accord when he judged it necessary. Five years  
prior to this transaction, Anthony was president of 3021386 NS Ltd., which was  
involved in a potential purchase of the former Mabel’s Fruit and Vegetable Stand  
Page 30  
property on Highway 303, in Conway. The property had been a former Irving service  
station, and a preliminary environmental assessment by ECCO was performed at  
Anthony’s request, recommending a Phase II report. In reading this correspondence,  
Anthony acknowledged that red flags were raised because there was no conclusive  
evidence that the petroleum had been removed. The preliminary report indicated  
that the costs of an investigation could be between $10,000 and $100,000, or more  
for remediation. As a result of this information, Anthony decided not to go forward  
with the purchase. This is but one example of several that were referenced in the  
evidence of a prior potential development where Anthony dealt with environmental  
concerns, on his own with no reliance on Harding.  
[102] Anthony’s evidence of how matters proceeded in respect of the second RFP  
raise concerns about credibility and reliability. As noted earlier, Anthony submitted  
proposals on behalf of both a numbered company and Anthony Properties, on  
October 30, 2006. Contrary to his initial recollection, it emerged from reference to  
Council records on his cross-examination that it was, in fact, his proposal of the same  
date on behalf of Anthony Properties Limited (not the numbered company) which  
was accepted. The fact that he could not correctly recall which offer letter was  
accepted until he was cross-examined impacts my assessment of the reliability of his  
evidence. This is just one of many instances where his recollection is faulty.  
[103] Anthony emailed Holland on November 8, 2006, indicating that he was  
moving forward with inspecting the site and meeting with insurance representatives,  
among other matters respecting the Property, even before Council had accepted his  
offer, and requesting that Council move up its meeting because he was leaving for  
Halifax later that day. He also indicated that he knew that Harding was representing  
the Municipality. Harding had told him to get the approval of the Municipality for  
him to represent Anthony as well. However, the amended Notice of Action and  
Statement of Claim states:  
Mr. Anthony was subsequently informed by Mr. Harding that he would also be  
representing the Municipality with respect to the sale of the Subject Property.  
[104] The fact is that Anthony knew that Harding was representing the  
Municipality, and he also wanted Harding to represent him if Council agreed. As  
noted earlier, on November 14, 2006, after Anthony’s RFP was accepted, he wrote  
to Council requesting, inter alia, a “letter from Jacques Whitford.” In the same letter,  
he wrote, “The lawyer Don Harding can look after both sides in “this land  
transaction.” Anthony testified that he did not consult with Harding before sending  
this letter, or while preparing it. Anthony knew there were oil tanks on the site.  
Page 31  
Initially, Anthony did not believe that he spoke at or attended the Council meeting.  
However, he was referred to the following Council minutes from the regular meeting  
on November 14, 2006:  
Mr. Anthony appeared before the meeting for the purpose of further explaining his  
proposal and his intention develop the property.  
Mr. Anthony informed Council that he wished to demolish the Junior High School  
portion of the property as soon as possible. Mr. Anthony would like to demolish  
this building because the Assessment Roll is completed as of December 1st, of each  
year. He would like to have this property demolished prior to the completion of the  
Assessment Roll so that the assessment would be reduced accordingly. Mr.  
Anthony submitted a copy of a certified cheque which he has provided to the  
Municipal Solicitor in the amount of $25,000.00 for the purchase of the property.  
He has also provided a draft of the insurance coverage on the property which will  
be put in place on November 15th…  
[The foregoing quotation has not been edited for grammatical errors.]  
[105] This is an another example of the frailty of Anthony’s memory.  
In  
questioning, he indicated that these events were 15 years ago, and he simply forgot  
that he addressed Council. By a unanimous motion on November 14, 2006, Council  
agreed to enter into an APS with Anthony’s company.  
[106] The next day on November 15, 2006, Anthony was writing to his insurance  
agent advising that he wanted to commence work “asap” and that he had scheduled  
the demolition for “Monday morning.” Anthony agreed that when his company was  
demolishing the buildings on the site, he did not have a date for closing. He agreed  
that his November 14, 2006, letter did not link the Jacques Whitford request to the  
closing date. He agreed that when a transaction is closed, due diligence must be  
completed. He maintained, however, that this was not a “normal transaction”,  
because of the “comfort zone” he had, and the assurances he said Harding and  
Holland provided him. He could not point to any documentary support for this view,  
but said he asked, and no one said “no”. He said “maybe it’s my fault because they  
never said no to me”, and added, “sooner or later silence becomes betrayal”.  
[107] The Council resolution, ostensibly finalized November 6, 2006, predates the  
November 14 letter from Anthony, with its request for a Jacques Whitford letter. In  
particular, the resolution states:  
FORMER B.M.H.S. PROPERTY  
Page 32  
A recommendation from the Clerk-Treasurer was previously circulated to  
members, by email, regarding the proposals received on the former B.M.H.S.  
property.  
Page 4, Committee of the Whole Council Meeting, November 6, 2006  
It is the recommendation of the Clerk-Treasurer that he proposal received from  
Anthony Properties Limited be accepted by the Municipality. This proposal  
appears to be the best of the alternatives provided. It would provide $25,001.00 for  
the property to the Municipality. The property would then become taxable and  
produce tax revenues to the Municipality. Mr. Anthony would develop the property  
in the future so as to add to the Municipality’s tax base and to create jobs in the  
area. The portion of the property that is not usable would be demolished by the  
owner and removed from the site, and finally the Municipality would not become  
involved in environmental issues with the property as it would be sold on an as  
is/where is basis. The sale of the property would also allow the Municipality to  
retain ownership of the track and field for use of the public.  
Resolution COW061114  
Moved by S. Strang and seconded by D. Messenger that it be recommended o  
Council that the former Barrington Municipal High School property be sold to  
Anthony Properties Limited and that the appropriate Agreement of Sale be  
completed, including the stipulation that the purchaser is responsible for all survey  
and legal costs for the purchase of the property.  
Motion carried unanimously.  
[Emphasis Added]  
[108] While Anthony conceded that there was no express suggestion that Harding  
would look into environmental concerns, he expected that Harding would include a  
clause in the agreement requiring a Jacques Whitford letter or assurance. I note that  
he did, in fact, include an opt-out for the Plaintiff in Clause 9 of the APS.  
[109] In Anthony’s affidavit of October 15, 2018, he stated:  
29. Despite the assurances I had received for many months from Holland and  
Harding regarding the Board and the requirement that the Property be clean when  
it is handed back to the Muni, I wanted to be sure there was a requirement in writing  
that the Board must provide proof of no contamination.  
[110] It was put to Anthony that this paragraph suggested that he was not relying on  
assurances from Harding or Holland, but was taking other steps. He agreed that he  
was not prevented from raising his request for a Jacques Whitford letter after he  
received the soil samples in the AGAT Report.  
Page 33  
[111] Anthony confirmed that he was familiar with the RFP proposal evaluation  
undertaken by the Municipality in August 2006, which included the Anthony’s  
Properties Ltd. proposal that stated, “No environmental assessment or evaluation  
required.” He agreed that this evaluation occurred after his proposal and presentation  
in May 2006. Anthony was referred to his letter of October 2, 2006, to Holland and  
Council, in which he wrote:  
I am trying to make this as easy as possible as I am taking most of the risks.  
1. Buy proper as is, No Phase 1 or other major concerns that could be a Major  
problem if this is done.  
[112] It was put to Anthony that the RFP had not come out before he received the  
alleged assurances, and that he wrote to Council that he would buy “as is” with no  
Phase I. Anthony now said he had assurances about the environmental state of the  
property before the RFP appeared. Again, this is a shifting account by Anthony. In  
prior discovery evidence he had pointed to the end of November.  
[113] It was further put to Anthony that he gave a media interview after his bid was  
accepted in which he said the property was a “steal of a buy.” While he claimed not  
to recall, he did not deny this. He was referred to a news article, dated November  
17, 2006, which included the following passages:  
BMHS sold for condos and commercial units  
The former Barrington Municipal High School Property in Barrington Passage has  
been sold.  
The Municipality of Barrington finalized a deal with K.B. Anthony Properties Ltd.  
at last Tuesday night’s (Nov. 14) council session.  
Proprietor Ken Anthony is purchasing the property, excluding the athletic complex  
area, for $25,001.  
“I think it was a steal of a buy,” said Anthony, who is starting work immediately  
by demolishing the junior high and converting the senior high section into  
condominiums.  
“The building (senior high) is solid as a rock,” said Anthony. “All the infrastructure  
is there so it’s more or less cosmetics.”.  
That section of the school has also been given a clean bill of health. “There are no  
environmental concerns there,” said Anthony, who has already started to build a  
demo suite…  
Page 34  
[114] Anthony agreed that he gave the interview, including the remark that “there  
are no environmental concerns here.” He said he could not recall how he knew this  
on November 17, 2006.  
Soil Analysis, Jacque Whitford Letter, and Closing  
[115] Anthony was asked whether, when he referred to a letter from Jacques  
Whitford with regards to the tanks being removed in response to an email from  
Harding on November 20, 2006, he meant the tanks that were identified as being  
removed by the Board. He denied this, and said it was in reference to any tanks on  
the Property. He was directed to his affidavit of October 15, 2018, where, at  
paragraph 25, he stated:  
By this point I had become aware that there were at least two oil tanks that the  
Board were having removed, and that the Board would then have the area where  
the tanks had been located, tested for any soil contamination. I was focussed on  
the tank removals that the Board and the Muni had made me aware of, and not  
making sure that those areas were not contaminated. I presumed that the Muni,  
with Harding’s advice, was doing what it needed to do to assure itself that the Board  
couldn’t return the Property to the Muni in a contaminated state.  
[116] Anthony agreed that his focus in that paragraph was on the oil tanks that the  
Board was removing. His affidavit went on, at paragraph 47:  
On November 21, 2006 Holland email me and copied Stoddart, and when  
referencing an oil tank behind the junior high school building he says “…the sooner  
it is removed and the letter from Jacques Whitford is provided, the better.” As  
Holland notes in his email, I called Stoddart directly and he and I spoke about that  
tank and the other diesel fuel tank and the Board was also having removed from the  
Property, along with the environmental clearances that the Board was going to be  
providing to the Muni, as Holland references in his email.  
[117] This paragraph makes it clear that Anthony’s reference to Jacques Whitford  
was in relation to oil tanks being removed by the Board. Anthony’s response at trial  
was that he did not recall that evidence in his affidavit. He accepted, however, that  
his focus at that time was on the two tanks being removed by the Board.  
[118] Anthony emailed Holland on November 21, 2006, again on the matter of  
tanks:  
Thank you Brian for calling me this evening and letting me know of the concerns  
of Stevie Stoddart and the School Board. I immediately called Ronnie Ryer who is  
Page 35  
doing my work and he assured me he was not close or going over the capped off  
area where it was stated it was a oil tank. I … with Brian OConnor before work  
commenced and he stated that Stevie Stoddart assured him it was empty. We are  
for safety precautions ..ing around it first thing in the morning and will keep it  
fenced off until the School Board gets a clean bill of health, as well as eventually  
the …2 areas. (Annex and behind Sr High gym area.)  
…do have a few questions though, in which I was assured the tank was empty.  
Please re confirm that Steve Stoddart has had the tank emptied … without any oil,  
gas, etc. as Steve was suppose to have stated. I believe then there should be no  
issues. I trust that Stevie S and the School … have started the environment concerns  
and commencing to get a Jaques Whitford in as promised. I was also going to ask  
when the 3… or closing of the Annex would be taking place. I am in no major rush  
but it would be for development purposes be nice to have the Old … out of the way.  
We will be continuing to tear down the old School tomorrow morning as well as  
commencing on the model suite in the Senior High. We will be …way from the  
tank until the School Board completes there work and making sure it is up to  
Environmental regulations.  
Please keep me posted and I will call Steve early Tuesday morning.  
All the best, and gain, We will not be doing any digging into the ground or going  
over the site where there is a tank.,  
regards KB  
[The foregoing quotation has not been edited for grammatical errors.]  
[119] It was put to Anthony that there were only three areas of the property that he  
was concerned about: a capped-off area where there was an empty oil tank, the  
annex, and the senior high. He answered that his intention in demanding a Jacques  
Whitford letter was not to address specific locations, but to confirm there was no  
contamination anywhere on the Property, in accordance with the assurances he  
claimed to have received, regardless of the RFP. Anthony subsequently received  
the AGAT lab results, which were not in relation to the whole property, but closed  
anyway.  
[120] After the message quoted above, Anthony was copied on an email from  
Holland to Stoddart, on November 21, 2006:  
Mr. Anthony has been informed of your concerns and has told me he will call you  
this morning.  
At the present time he is demolishing the old Junior High School and removing  
debris from the site. He will also be starting construction of a “model suite” in the  
Senior High School.  
Page 36  
He will not be demolishing or constructing anything near the old tanks in the Annex  
or Senior High School.  
The demolition will not affect the area around the oil tank behind the Junior High  
School as that tank has been fenced off so the machinery will not intrude on it.  
In any case you informed me by email on November 1, 2006 that the oil tank behind  
the Junior High School has been pumped out, so there can be no contamination  
from it. Nevertheless, the sooner it is removed and the letter from Jacques Whitford  
is provided, the better.  
[121] This email indicated a connection between the requested Jacques Whitford  
letter and an oil tank behind the junior high school that had been pumped out. This  
email was forwarded to Harding, who had not originally been in the exchange, on  
December 1, 2007. Anthony agreed that there was no evidence that Harding knew  
of any contamination on the Property. He also agreed that Harding was not involved  
in the exchange of emails between the Municipality and the Board concerning the  
tanks, other than being copied on one email.  
[122] From the time of the acceptance of his proposal on November 14, 2006,  
Anthony was on the property until the closing in February 2007. Throughout that  
time, he did not see any tanks being removed, and did not see any evidence of holes  
or test pits being dug. I am satisfied that he knew that no Phase I or Phase II  
environmental assessments or significant soil inspection of the entire property was  
being done.  
[123] Anthony was prepared to close without the tanks being removed. On  
December 6, 2006, he emailed Stoddart as follows:  
Steven, I may close early as the property has been paid for, for a few weeks now. I  
want to make sure that the oil tank contamination is cleaned up and a letter from  
Jacques Whitford, etc.  
Please follow through as it would be nice to move quickly as you did with  
the first oil tank. I know you are on a time restraint but as long as I have a guarantee  
on the oil, then I will work with you.  
[124] Anthony confirmed that Harding was not copied on this email. There is  
reference to “oil contamination.” Anthony was not sure whether the reference to  
contamination was in error, or whether he was referring to removal of a second tank,  
or something else. This was but one of many emails dealing with the transaction  
that Harding was not copied on. On December 12, 2006, Holland emailed Anthony  
as follows:  
Page 37  
Subject: BMHS Property  
The oil tank was removed from behind the senior high yesterday.  
I’m waiting for the invoice from Wayne Robichaud.  
I have also called DEL about it and am waiting to hear back from them.  
They told me as long as an approved person removed the tank it was not necessary  
to have engineers report on the above ground tank unless there was a problem found  
during removal. As far as I know there were no problems.  
I have taken pictures of the site after the removal for our records.  
[125] Stoddart wrote to Holland on January 22, 2007, reporting on the status of the  
property:  
We have removed the diesel pump and tank from the property. Everything appears  
to be okay and soil samples have been taken and sent to the lab for analysis.  
I am prepared to turn the property over to the Municipality today, January 22, 2007,  
under the following condition:  
I need to have use of the old board office until the end of February 2007. I  
will have the power and oil disconnected on or before that date.  
I require the use of the facility as it is taking some time to get the phone lines  
connected at our new location and we still have material in the building we need to  
remove.  
[126] Harding was copied on an email from Anthony to Holland on the same day,  
in which Anthony said:  
I find the environment to be very weak. I need better assurances and more  
paperwork then… it is being reviewed and everything appears to be ok. Please  
confirm how long the soil samples will be back clean of any environmental  
concerns.  
[127] Anthony agreed that Harding had no direct connection to this communication,  
as he was dealing with any environmental issues himself. He agreed it was possible  
he copied Harding because the message dealt with the closing date, but he  
maintained that he was also updating Harding on his environmental concerns.  
However, as I have described, the other evidence and the history of the relationship  
make it clear that he was not seeking advice from Harding on the environmental  
condition of the property.  
[128] On February 7, 2007, Holland provided Anthony with the AGAT Reports  
concerning soil samples covering the following locations:  
Page 38  
1.  
2.  
3.  
The oil tank behind the junior high;  
The diesel tank and furnace oil tanks behind the annex building; and,  
The above-ground tank behind the senior high school.  
[129] Anthony did not seek Harding’s advice about these results. He testified that  
he could read a sample and did not need assistance. On February 13, 2007, Anthony  
emailed Harding, copying Holland, and stated, “I reviewed the Environmental report  
and am prepared to sign off and purchase the property as soon as possible.” This  
email confirmed Anthony was satisfied with the soil samples and instructed his  
counsel to proceed with the closing. He gave those instructions without consulting  
Harding, and knowing full well he did not have a “Jacques Whitford” letter or a  
Phase I or II Environmental Assessment, and making no mention of outstanding  
environmental issues. On cross-examination, Anthony acknowledged that clause  
nine of the APS allowed him to walk away from the deal if he was not satisfied with  
the environmental conditions, yet he did not raise the issue before closing. His  
answer was that he was into the project at that point in the amount of $200,000.  
[130] Between the closing on February 16, 2007, and November 30, 2007, there was  
not one email communicating Anthony’s request for a Jacques Whitford letter. The  
issue only reappeared after contamination was discovered. Moreover, he said he  
pursued the action against the Board, because they polluted the Property. He  
acknowledged that his company discontinued the action against the Municipality.  
[131] It appears the only area Anthony was concerned about was around oil tanks  
being removed. For instance, his email to Hogg, on November 30, 2006, already  
quoted, included a reference to Board responsibility for “taking out the in ground oil  
tank … and a letter from Jacques Whitford or acceptable qualified company stating  
that it is environmentally clean,” and indicating that he would then be ready to close  
before the Municipality and the Board vacated. He did not confirm in writing the  
assurances that Harding allegedly provided because Harding was his “best friend”  
and it would almost be an insult. Anthony also confirmed that there is no evidence  
he raised a Jacques Whitford letter or satisfaction regarding oil contamination when  
he was before Council.  
Discovery  
[132] In Anthony’s discovery of December 5 and 6, 2012, he said he expected the  
Board or the Municipality to provide a “clean bill of health” in relation to the  
property:  
Page 39  
Q.  
Right but you were asking a specific question, within approximately three  
months a letter from Jacques Whitford stating the oil tanks have been removed and  
it is acceptable no contamination.  
A.  
Q.  
Yes he said the school board is going to look after it before its’ passed over.  
Okay. You don’t reference, when you make this request regarding Jacques  
Whitford and have been removed, no contamination are you talking about a Phase  
2? What are you looking for?  
A.  
All the oil tanks removed, yes, well I’m not sure if there’s anything in the  
ground. I know there’s basically the oil tank at the in behind the school and there’s  
one over at the annex and whatever other oil tanks so they were just going to give  
me a clean bill of health, I relied strictly on the Municipality.  
Q.  
A.  
My question though is, you knew at that time what a Phase 2 was, right?  
Yes I do, correct.  
[133] Anthony’s evidence at discovery is not supported by the actions and steps he  
took in responding to the RFP. He went on to agree that he recognized an APS as a  
legal contract, and that the APS contained no reference to a Jacques Whitford letter;  
Anthony said “[t]he only thing would be number 9.” He went on:  
Q.  
Right, but in terms of the representation, just so that we can be clear on this,  
we’re talking about the representations that the Municipality are making on the  
property?  
A.  
Q.  
M-hm.  
This indicates that they’re not making any representations, no  
representations about the condition of the property?  
A. But agrees to obtain from the school board, so they are looking after getting  
a letter or something in regards from the school board.  
Q.  
A.  
Q.  
Yeah that being satisfactory to you, right?  
Correct.  
All right. So what they’re saying, you’d agree, is that they will agree to get,  
obtain from the school board and/or their consultants an opinion as to the removal  
of the tanks and the conditions of the property being satisfactory to the purchaser,  
and that’s you?  
A.  
Q.  
A.  
Q.  
That’s correct.  
Not satisfactory to them?  
That’s correct.  
The Municipality being them, right?  
Page 40  
A.  
Q.  
A.  
Yes.  
You had to be satisfied?  
Yes.  
[134] At discovery Anthony agreed unequivocally that he reviewed the APS before  
signing. At trial, he attempted unsuccessfully to distance himself from that position.  
On discovery, the following exchange occurred:  
Q.  
So again, I’m suggesting that the answer you’re giving there is that you  
reviewed the - - were aware that you had the option not to close, you reviewed the  
environmental information that was provided and instructed Mr. Harding to close  
because at the time you were relying on reports that you were going to get a clean  
bill of health, is that not what you intended to say in December of 2012?  
A.  
Correct.  
[135] Anthony also confirmed in discovery that he was dealing with environmental  
issues in relation to the subject property, and that the issues of concern were not  
limited to air quality. He also agreed that he never asked Harding to review any  
environmental information. Anthony attempted to add nuance to this answer at trial  
by suggesting he relied on Harding when all the evidence refutes this position.  
[136] Anthony confirmed on discovery that he did not rely on Harding for advice  
on environmental issues or for referrals on environmental experts, only to suggest  
the opposite at trial.  
Remediation  
[137] In December 2007, oil contaminated soil was found on the Property by an  
excavator. Anthony hired an environmental engineering firm to assess the  
contamination. In the result, three areas of contamination were delineated. The  
Plaintiff remediated Area 1 at its own expense and proceeded with the development  
of the Property. Areas 2 and 3 have not yet been remediated. The cost to remediate  
Area 1 was approximately $140,000; the estimate to remediate Areas 2 and 3 is said  
to be $690,000.  
[138] In early 2008, approximately a year after closing, Anthony learned that an oil  
tank remained on the property. He said he called Holland and indicated his surprise,  
then asked Russell Finlay to undertake a Phase I assessment. Two more oil tanks  
were located, and contaminated soil was found behind the junior high. Anthony  
Page 41  
testified that he believed the remediation work would be expensive, so he stopped  
the work after about a week, intending for the Board to take responsibility.  
[139] Anthony said the plaintiff paid invoices from R&T Excavating Limited, Ecco  
Environmental, Robichaud’s Pumping Service, and Geo-Map Surveying and  
Engineering. The work invoiced included testing pits, soil samples, and clean-up.  
[140] Anthony testified that the remediation has never been completed due to cost,  
and he wanted to deal with the litigation before spending additional funds.  
Steven Lockyer  
[141] Steven Lockyer (“Lockyer”) did not testify, but his discovery evidence, given  
on September 7, 2014, was entered as an exhibit at trial by the Defence. As noted in  
Anthony’s evidence Lockyer dealt with financing, environmental issues, and  
conditions of properties for the plaintiff company. He confirmed that prior to  
February 2007, in loaning money for property purchases, his practice was to require  
information about the environmental conditions of the property. He said he would  
always require an environmental assessment, and sometimes a Phase II, because  
remediating environmental issues can be very costly.  
[142] Lockyer testified that Anthony, who ran the company’s operations, was  
responsible for obtaining Phase I environmental assessments and letters from the  
Department of Environment. He was not aware if Harding dealt with, or reviewed  
environmental reports in any property transaction, but said this was not part of  
Harding’s retainer. In describing the company’s normal procedures Lockyer said:  
A. We always bought property getting Phase I. That was just a standard thing on  
all my lending and all my purchases, we require a Phase I environmental clean,  
no soil contamination. That’s just a standard that we – in all documents that  
you’ve shown me, we’ve never deviated from that, and we wouldn’t deviate  
from that on this transaction.  
…
Q. But my question is, sir, can you point to one transaction, a single transaction,  
where you didn’t delegate that task to your operations manager but instead had  
your solicitor retain an environmental expert to provide a Phase - - -  
A. Right, it was the operations manager’s responsibility.  
[Emphasis Added]  
Page 42  
[143] Lockyer’s discovery does not corroborate Anthony’s evidence and further  
supports a rejection of Anthony’s attempts to impose liability on Harding.  
Brian Holland  
Environmental Assurances and Retention of Harding  
[144] As noted earlier, Holland was Clerk/Treasurer for the Municipality. He helped  
prepare and send copies of the RFPs to Council, and to their counsel Harding, and  
facilitated the advertisement of the RFP. Holland wrote to the Board on February 2,  
2005, inquiring as to the approximate time when the Property would be returned,  
stating, “We anticipate receiving an assurance that there will be no environmental  
concerns outstanding at the time of transferring ownership back to us.” Holland was  
initially asked by the Council to seek environmental assurances from the Board,  
particularly respecting air quality in the junior high portion of the building. He had  
no authority over buying and selling properties on behalf of the Municipality, except  
for bid less tax sales, where he had authority to place a minimum bid. Holland did  
not have authority to negotiate on behalf of the Municipality.  
[145] Holland prepared the first RFP, dated February 1, 2006, and he was  
responsible for reviewing the proposals and making recommendations to Council.  
Two responses were received to the first RFP, one from East Bay Realty and the  
other from one of Anthony’s companies. East Bay Realty requested copies of  
environmental evaluations and appraisals.  
[146] Holland said that on receipt of this inquiry, the Municipality reviewed the  
proposals and considered the fact that they had no information about the current state  
of the Property. This resulted in the decision to reject both proposals and prepare a  
new RFP indicating that no environmental guarantees or assessments would be  
provided. Holland wrote to Stoddart, the Board’s Director of Operations, on June  
20, 2006, as follows:  
As we discussed this morning the Municipality will soon be accepting ownership  
of the former Barrington Municipal High School from the Tri-County Regional  
School Board.  
In order for the Municipality to be able to use this property or to be able to dispose  
of it to developers, it is necessary that there be a written environmental clearance  
provided by the School Board. Could you please ensure that the Tri-County  
Regional School Board provides an environmental clearance either from the  
Department of Environment and Labour or as a Phase II Environment Assessment,  
Page 43  
along with the asbestos audit that has been done in the building and any other  
environmental clearance that may be required for the building.  
Your cooperation in providing this information so that the Municipality may  
properly deal with the property and the buildings is much appreciated.  
[147] Holland wrote to Stoddart again on July 11, 2006, concerning the fueling of  
buses. Stoddart responded on July 25, 2006:  
Thank you for your letter of July 11, 2006 regarding the exchange of property at  
the old Shelburne County School Board Office site.  
I will have my staff proceed with the necessary work involved to complete the  
exchange as outlined in your letter.  
As you are aware before we can abandon the existing site, I have to have a new  
diesel fuel pump and tank installed at the new site and the existing pump and tank  
removed from the existing site. When the existing tank is removed there will be a  
soil analysis completed to ensure there is no soil contamination.  
When this work is completed I will notify you immediately. If you or interested  
parties in the property wish to access the site please feel free to contact me.  
I wish to thank you and the Municipal Council for your continuous cooperation in  
the transition of the former B.M.H.S. property.  
[148] This letter did not refer to a Phase II assessment, but to a soil analysis. In  
evaluating the proposals, Holland noted that Anthony Properties stated, “no  
environmental assessment or evaluation required.” He said the lack of a requirement  
for an environmental assessment was discussed in a closed door Council session  
with Anthony present. Holland said he referred to the company’s “environmental  
risks assumed by developer” statement in his summary to Council because the  
developer informed Council they would be taking all of the environmental risks.  
Holland was referred to his letter to Anthony on October 10, 2006, explaining why  
the earlier proposals were rejected:  
After much research Council has reviewed the proposals received on this property  
and has decided not to accept the proposals.  
Because of the strong sentiment expressed in the community, it is necessary that  
the Municipality retain the track and field property at the western end of the former  
Barrington Municipal High School. As a result this property will not be sold.  
Also, it has take some time for the Municipality to obtain agreement from the Tri-  
County Regional School Board for the return of the Annex property at the eastern  
end of the school. The School Board has now agreed to return this property and  
Page 44  
this property will be sold by the Municipality as part of the former B.M.H.S.  
property.  
Also, the Municipality has investigated requirements for environmental  
assessments. As a result Council has determined that the Municipality will not  
complete any environmental assessments on the property.  
As a result of the information obtained and the change in circumstance, the  
Municipality will not be accepting your proposal that has previously been submitted  
on the property.  
The Municipality will be re-advertising the sale of this property in the very near  
future and will again be seeking proposals on the specific property that is now  
available for sale.  
Thank you for your time and consideration in this matter. It is much appreciated.  
[Emphasis Added]  
[149] Both East Bay Realty and Anthony were advised that their proposals were  
rejected. East Bay Realty had requested an environmental assessment, while  
Anthony’s company had not. The June 20, 2006 letter to the Board was not  
responded to in any positive way and was not given to Harding when he was  
retained. It is also irrelevant in that the deal was negotiated and finalized without  
environmental assurances. Clause 9 of the APS was protection for the Plaintiff and  
Anthony never received any environmental assurances, as I have found as fact.  
[150] Holland said the Board did not want to provide an environmental assessment.  
In order to sell the property, Council decided that no environmental assurances  
would be provided. The Municipality’s solicitor advised them to include a clause to  
that effect in the RFP. There was some evidence this was advice from Harding. This  
is the only evidence of any involvement of Harding until after the bid was accepted.  
[151] Holland denied Anthony’s claim that he gave him assurances that the Property  
would be “clean”, saying “I did no such thing”. Holland’s evidence was as follows:  
A.  
And I’ll tell you same thing now as I told them then I did no such thing and  
never did. I’ll you same thing as I told them then, there was a time that I went to  
Tim Horton’s for dinner in Barrington Passage and Mr. Harding and Mr. Anthony  
were sitting at a table having their dinner and talking and I said hello to them and I  
went over and I sat down and I had my dinner with them. Uh, at dinner time I don’t  
talk business. I’ll talk about baseball or hockey or kids or whatever. But at dinner  
time I get away from business and have a break. They wanted to talk business so I  
stayed and I just kept my mouth shut and listened and then I said thank you when I  
was done eating and left. And I made sure from then on I had resolved never to  
Page 45  
have dinner with them again. And any time I saw them at Tim Horton’s after that I  
just waved and said hi and kept going.  
[152] Holland maintained throughout his evidence that he never gave any verbal  
assurances to Anthony. He said he limited any communications with regards to the  
Property, had no knowledge of Board operations, and could give no such assurances  
about the Property. Holland said he knew the Property would be sold on an “as is”  
basis, with no environmental evaluations or guarantees.  
[153] Holland confirmed he received, and forwarded to the councillors, the letter  
addressed to him and the councillors of October 2, 2006, wherein Anthony stated:  
I am trying to make this as easy as possible as I am taking most of the risks. 1. By  
property as is, No Phase 1 or other major concerns that could be a Major problem  
if this is done.  
[Emphasis Added]  
[154] Stoddart confirmed the removal of fuel tanks in an email to Holland, copied  
to Hogg and Phil Landry at the Board, on November 1, 2006.  
[155] Holland said Anthony met with Council to discuss the Property. He later  
received a letter from Anthony, dated November 14, 2006, discussing the purchase  
of the BMHS. This was the letter in which Anthony wrote:  
2. within approximately 3 months, a letter Jacques Whitford stating the oil tanks  
have been removed and it is acceptable, no contamination. The Old Annex  
building, I would expect be tu rned over in approximately 3 months and my plans  
are again to tear it down immediately when passed over.  
[156] The day after Anthony’s letter, Holland emailed Stoddart, informing him of  
Anthony’s request for a letter from Jacques Whitford:  
Mr. Anthony has asked that Jacques Whitford provide a letter within 3 months that  
the oil tanks have been removed and the soil tested and there is not contamination.  
This includes the Annex building which he also intends to demolish.  
[157] Holland recalled that Anthony wanted a Jacques Whitford letter stating that  
the oil tanks were removed and that there was no contamination, but could not recall  
how Council responded. (He also recalled that Anthony had asked for Harding to  
represent both parties to the transaction.) Holland understood that the request for a  
Jacques Whitford letter was in relation to the removal of the tanks and tests to be  
done in respect of those locations, not in relation to the entire Property.  
Page 46  
[158] The Council minutes indicate that Anthony attended the meeting with Council  
on November 14, 2006, to discuss the proposal:  
Mr. Anthony appeared before the meeting for the purpose of further explaining his  
proposal and his intention to develop the property.  
Mr. Anthony informed Council that he wished to demolish the Junior High School  
portion of the property as soon as possible. Mr. Anthony would like to demolish  
this building because the Assessment Roll is completed as of December 1st of each  
year. He would like to have this property demolished prior to the completion of the  
Assessment Roll so that the assessment would be reduced accordingly. Mr.  
Anthony submitted a copy of a certified cheque which he has provided to the  
Municipal Solicitor in the amount of $25,000.00 for the purchase of the property.  
He also has provided a draft of the insurance coverage on the property which will  
be put in place on November 15th. This will be done in order to allow for demolition  
of the building. Mr. Anthony is requesting Council’s approval to start demolition  
of the building on November 15th, or as soon as possible thereafter, in order to  
achieve demolition of the property prior to the closing of the Assessment Roll.  
Resolution C061127  
Moved by D. Messenger and seconded by L. Stewart that Anthony Properties  
Limited be permitted to begin work on demolition of the former Junior High School  
portion of the building at the former Barrington Municipal High property as soon  
as possible providing the following conditions are met:  
1.  
A certified cheque is provided to the Municipal Solicitor in the  
amount of the purchase price of $25,000.00  
2.  
Mr. Anthony purchase adequate property insurance coverage to  
safeguard against any claim against the Municipality as a result of the demolition  
of the property.  
Motion carried unanimously.  
Having completed his discussion of the matter, Mr. Anthony then retired from the  
meeting.  
[159] The Minutes make no reference to a request for environmental assurances.  
[160] Holland subsequently emailed Harding on November 15, 2006, providing  
instructions to draft the APS:  
Last night Council agreed to accept the proposal on Anthony Properties Ltd. for the  
purchase of the former BMHS property. Please provide an Agreement of Sale for  
the property that will include the following:  
1.  
Sale price $25,001  
Page 47  
2.  
3.  
Purchaser responsible for survey and title migration costs  
Description is contained in the RFP document and will be confirmed  
by the survey.  
4.  
The Annex property will be included in the sale and transferred  
together with the rest of the property as soon as it is available from the School  
Board.  
Also, Council approved Mr. Anthony’s request for permission to being demolition  
of the old “junior high school” portion of the buildings right away.  
[161] On the same day, Holland wrote to Stoddart at the Board about the motion to  
sell the Property to Anthony Properties:  
At last night’s Council meeting a motion was passed to sell the former BMHS  
property, including the Annex, to Anthony Properties Ltd. Mr. Anthony has asked  
the Municipality to provide the following:  
1. The power to the Junior high be shut off immediately so the building can be  
demolished. I have called N.S. Power and they are sending someone to look at it  
next week. In the interim Ken Anthony has had Allan Brannen, a local electrician,  
shut off the power to the Junior High so the building can be demolished He has also  
arranged for Ron Ryer to start demolition on Monday, November 20th.  
2. Mr. Anthony has asked that Jacques Whitford provide a letter within 3 months  
that the oil tanks have been removed and the soil tested and there is no  
contamination. This includes the Annex building which he also intends to demolish.  
3. He has asked that the Annex be turned over to him by the end of three months.  
This will require the School Board to be moved out and have the tanks removed  
and reports done by Jacques Whitford by then.  
Please confirm that these tasks will be completed as required as Council is anxious  
to have the transaction completed and development begun on the property as soon  
as possible.  
[162] On January 22, 2007, Stoddart wrote to Holland indicating that the diesel  
pump and tank had been removed from the Property, adding “everything appears to  
be okay and soil samples have been taken and sent to the lab for analysis”. It appears  
that this letter was forwarded to Anthony in an email that day. In response, Anthony  
emailed Holland, copying Harding, on the same day with his view that “the  
environment” was “very weak”, and calling for “better assurances”.  
[163] Holland received a soil report from the Board authored by AGAT  
Laboratories, which he forwarded to Anthony via email on February 7, 2007. The  
email indicated that the samples covered “the locations of the oil tank behind the  
Page 48  
junior high school, and the location of the diesel tank and furnace oil tanks behind  
the annex building.”  
[164] Holland did not recall Anthony asking for a Jacques Whitford letter after this,  
nor did he ask for one before or after closing. Holland understood that the AGAT  
report was in response to the request for a Jacques Whitford letter.  
[165] Later that year, Holland received a call from Anthony about apparent oil on  
the Property. In a memo to file dated December 5, 2007, Holland wrote:  
Last Friday afternoon Ken Anthony called me informing me that Ronnie Ryer, who  
is excavating post holes for him at the former High School property, had uncovered  
what looked to be oil in the ground and asked that I go up and view it. I told him I  
would and went up and viewed it with our Building Inspector Andrew Goreham.  
Andrew took some pictures of it while we were there. As a result of this I returned  
to the office and then called Steve Stoddart at the Tri-County Regional School  
Board and informed him of it and asked him if he would take a look at the property.  
He informed me he would be in the area the following Monday and look at it that  
afternoon and talk to me at that point.  
[166] There was an exchange of emails on December 4 and 5, 2007, between  
Holland and Anthony, which Holland forwarded to Stoddart on December 5. These  
are of interest not only for what is said, but for the fact that no reference is made by  
Anthony of any alleged assurances:  
From:  
To:  
Ken Anthony  
Brian Holland  
Sent:  
Wednesday, December 5, 2007 11:26 AM  
Re: Former High School  
Subject:  
Hi Brian. I still haven’t heard anything. I have ECCO Environment coming today  
to do a report on the actual school. I need this for the $200,000 (Affordable Housing  
Grant) as I talked about. I need to know ASAP of the School Boards thoughts as I  
will not let time slip by. I know Don arding [sic] can not act and I am presently  
preparing and meeting with a Halifax lawyer.  
Please let the School Board understand that they are 100% responsible and  
that they will be accountable for costs delays of this project, responsible on the  
$200,000 grant, as well as all other damages.  
I believe the School Board is quite familiar with me and the last Court case  
that I won against them. I trust this can be rectified in a timey fashion. All the best  
and I appreciate your support to date. Regards Ken  
Page 49  
……………………………………  
From:  
To:  
Brian Holland  
Ken Anthony  
Sent:  
Tuesday, December 4, 2007 11:54 AM  
Former High School  
Subject:  
This morning I spoke with Steve Stoddart by telephone. He viewed the site last  
Sunday afternoon. He is going to consult with Phil Landry and then will let me  
know what action they will take. He said he would prefer to communicate through  
the Municipality.  
Brian  
[167] Holland said he forwarded this exchange to Stoddart because he wanted him  
to know, as the Board had been in possession of the property, that Anthony was  
alleging liability against the Board. Holland did not recall Anthony alleging that the  
Board or the Municipality did anything wrong. Anthony also did not refer to any  
assurances from Holland about a guarantee as to the state of the Property.  
[168] According to Holland, the Board suggested sharing the cost of removing the  
contaminated, but the Municipality rejected this idea. Holland said his instructions  
were based on the fact that the Municipality had sold the property with no assurances  
or environmental representations; the APS was entered into on an “as is” basis.  
[169] After further correspondence between Anthony, Holland, and Stoddart, in  
early February 2008, Council asked Harding to write to the Board. At this point,  
Harding was in a potential conflict of interest and should not have involved himself.  
However, as discussed later this did not cause the loss. Harding wrote to Phillip  
Landry at the Board on February 18, 2008:  
Dear Mr. Landry:  
As you are aware the Barrington Municipal High School was declared surplus and  
turned back to the Municipality of Barrington. As expressed in a letter of June 20,  
2006, the School Board was to provide full disclosure and complete environmental  
assessments as well as remedy any and all environmental contamination on the site  
in order for the Municipality to make use or dispose of the land. Under the  
Education Act, the School Board had control and conduct of the property.  
Subsequent it has come to our attention that there is serious environmental  
contamination on the property. The School Board must take the steps to remedy  
this contamination immediately as obligated under the Education Act and  
Environment Act. In acknowledgement of the statutory obligations the School  
Page 50  
Board has agreed all along that it would take the necessary steps to clean up the  
property but has not been diligently proceeding.  
We look forward to your confirmation that the appropriate steps will be taken as  
soon as possible to remedy the contamination on site.  
[170] This letter was an attempt to engage the Board.  
[171] Holland wrote to Stoddart on February 29, 2008, as follows:  
Dear Steven:  
Please find enclosed the following:  
1. Request for Proposals.  
2. Anthony Response.  
3. Agreement of Purchase and Sale.  
Mr. Anthony is in the process of compiling his reports and will provide those in the  
near future.  
All the correspondence and conversations between the Municipality and the School  
Board officials make it clear that the Municipality expected the property to be clean  
and certified clean with no environmental concerns. The School Board was also  
clear both in correspondence and discussions that development could or would go  
on with the property which would require it to be clean. You are aware that all  
parties involved relied on the School Board to ensure that there was no  
contamination. Now it has come to light that the School Board’s environmental  
reports were not complete and further clean-up is required. Please confirm that the  
School Board will honour its’ obligations in this respect so that the Developer can  
continue with its’ work. Our community needs the development. We appreciate  
your cooperation and early response.  
We look forward to your cooperation.  
[172] Holland said he was instructed by Council to write this letter in an attempt to  
spur the Board to take action.  
[173] Prior to the RFP’s, in a letter to the Board dated February 2, 2005, Holland  
had written, “we anticipate receiving an assurance that there will be no  
environmental concerns outstanding at the time of transferring ownership back to  
us.” Holland said he understood this to mean not only that any sick building issue  
would be addressed, but that there would be no environmental concerns on the entire  
Property. Then on June 20, 2006, Holland wrote to Stoddart stating the following:  
Page 51  
In order for the Municipality to be able to use this property or to be able to  
dispose of it to developers, it is necessary that there be a written environmental  
clearance provided by the School Board. Could you please ensure that the Tri-  
County Regional School Board provides an environmental clearance either from  
the Department of Environment and Labour or as a Phase II Environment  
Assessment; along with the asbestos audit that has been done in the building and  
any other environmental clearance that may be required for the building  
[174] Holland understood that Council saw this as more of a demand than a request.  
There was no satisfactory response given from the Board. The RFP was revised and  
reissued. The fact remains that the Municipality made no assurances and sold the  
Property “as is.”  
[175] Holland denied Anthony’s claim that in the Fall of 2006 he told Anthony that  
the Property was coming back to the Municipality from the Board “clean”, saying,  
“No sir. Absolutely not.”. I found Holland’s evidence to be both credible and reliable  
on this point. Where Anthony’s evidence conflicts with Holland’s, I prefer Holland.  
He was clear and never gave conflicting evidence. No documents impeach him on  
this point. He presented as an earnest witness attempting to give an honest account.  
Harding’s Dual Retainer  
[176] As noted earlier, Harding wrote to Anthony (directed to the numbered  
company) on November 22, 2006, addressing the conditions of his representation of  
the parties. After noting that both parties had asked him to act on their behalf, he set  
out the conditions of a dual retainer, including the lack of confidentiality as between  
clients and the requirement to withdraw in the event of a dispute.  
[177] The description of Harding’s role in the letter differed somewhat from the  
description in Harding’s Affidavit of October 3, 2018, where he said at para. 60:  
Because of my dual retainer on behalf of 386 NSL and the Municipality, I did not  
give advice to either party concerning the form or content of the Agreement of  
Purchase and Sale (“APS”) or steps they might respectively take to protect their  
positions. My role was to reduce the terms of the accepted offer to written form.  
[178] Holland denied advising Council that if they permitted the dual retainer they  
would not be getting advice on the content of the APS and how to protect their  
position. He also denied that Harding told him that if the dual retainer was agreed  
to, the Municipality could not receive legal advice from Harding.  
Page 52  
[179] Holland said he emailed Harding on November 20, 2006, attaching an email  
from Darrell Wilson, their insurance adjuster, describing certain requirements the  
insurer wanted included in the APS. Holland said he asked Harding to include these  
items in the APS. This is consistent with Harding’s Affidavit of October 3, 2018, at  
para 57:  
I had no involvement in the offer, negotiation, or acceptance of the terms of  
purchase and sale, which had been agreed to between the parties. I did not provide  
any advice to either party about what should or should not be included in their  
agreement nor did I provide advice as to the benefits or risks associated with any  
terms they instructed me to include.  
[180] Harding’s affidavit indicates that Harding would not give advice on terms or  
provisions to either party (para. 57). Holland indicated that he did not understand  
this, so he never advised Council. Harding emailed him, copying Anthony, on  
November 20, 2006, asking whether there was anything else he wanted in the APS;  
Holland said he had not seen this email prior to the litigation. Holland said Harding  
never discussed Anthony’s request for a letter from Jacques Whitford. Holland said  
he provided Harding with the thoughts of the insurer, but he was relying on  
Harding’s expertise to include in the APS what was necessary. The insurer’s email  
included four recommendations: an insurance clause, a written agreement, an  
indemnification, and no contamination. The latter was not done, as the Board never  
specifically agreed, and the Municipality decided to sell on an “as is” basis. Holland  
testified that he expected Harding to mention anything else he thought should be in  
the APS, but Holland did not call him after he sent the email to him.  
[181] Holland said he did not understand that everything shared with Harding would  
be shared with Anthony, including the insurer’s email. This all supports the view  
that Harding may have done a poor job explaining his dual retainer and the  
limitations it imposed. It does not, however, demonstrate that his failings caused  
Anthony’s alleged damages.  
[182] Holland recalled a suggestion by the Board in December 2007 to share the  
cost of removing the contaminated soil. He had an exchange of emails with Stoddart  
on this issue:  
To:  
Brian Holland  
From:  
Sent:  
Steve Stoddart  
December 20, 2007 8:26 AM  
Re: Old BMHS property (Ken Anthony)  
Subject:  
Page 53  
Committee of the whole council considered this request to pay half the cost of  
removal of the contaminated soil at the former high school property, and has  
recommended to deny this request. They are unwilling to pay any of the costs.  
Brian  
………………………………………..  
From:  
To:  
Steve Stoddart  
Brian Holland  
Sent:  
Friday, December 14, 2007 2:45 PM  
Old BMHS property (Ken Anthony)  
Subject:  
Brian  
I would suggest that we agree to have the pile of contaminated soil removed from  
the site and share the cost.  
I can make arrangements if you want.  
Let me know as soon as possible. Give me a call if you want.  
Thanks  
Steve  
[183] Holland did not recall whether Harding or any other lawyers were involved in  
this exchange. He did not recall himself or Council consulting Harding on this issue.  
[184] To Holland’s knowledge, the only issues at the time that the Board  
relinquished the Property to the Municipality were the three above-ground oil tanks.  
[185] Holland came across as an earnest, credible, and reliable witness. He took the  
process seriously and was very respectful throughout. I have accepted his evidence  
and find as fact that he did not give any assurances to Anthony.  
Steven Stoddart  
Environmental Assurances and the RFP  
[186] Stoddart, who was retired by the time the matter came to court, was Director  
of Operations at the Board at the time of the negotiations with Anthony. He dealt  
with property and student transportation. He testified that the Board’s use of the  
Property ended in 2007. At that point, it was no longer being used as a school, but  
as a depot for fuelling buses.  
Page 54  
[187] On June 6, 2006, Stoddart received a letter from Holland indicating that the  
Municipality required either a written environmental clearance from the Department  
of Environment and Labour or a Phase II Environmental Assessment. Stoddart  
acknowledged that no such clearance was provided. He discussed the request with  
his supervisor, Superintendent Landry, and never responded to Holland specifically  
refusing a Phase II or an environmental clearance. On July 4, 2006, he wrote the  
following to Holland:  
Before we turn the property back to the Municipality we have to remove the  
existing unground diesel fuel tank and have soil analysis completed and approved  
by the Department of Environment.  
[188] He wrote again to Holland on July 25, 2006:  
As you are aware before we can abandon the existing site, I have to have a new  
diesel fuel pump and tank installed at the new site and the existing pump and tank  
removed from the existing site. When the existing tank is removed there will be a  
soil analysis completed to ensure there is no soil contamination.  
[189] Stoddart confirmed that the tanks were removed by Robicheau Pumping and  
a soil analysis was done. He said underground tanks and an above-ground furnace  
tank were removed.  
[190] On November 21, 2006, Holland emailed Stoddart asking if they could have  
everything completed by the proposed closing date of January 22, 2007. Stoddart  
responded the same day indicating the Board would make every effort, but that the  
only issue might be with regards to the diesel pump and tank. He explained in his  
testimony that the Board needed to have the tank removed and obtain the reports.  
[191] Stoddart wrote to Holland on January 22, 2007, advising him that the diesel  
pump and tank had been removed, and that “everything appears to be okay and soil  
samples have been taken and sent to the lab for analysis.” He testified that at that  
point he thought everything was fine, because Robicheau Pumping had not seen any  
contamination.  
[192] Directed to Anthony’s email stating that “I find the environment to be weak”,  
Stoddart said he did not recall Holland informing him that Anthony was not satisfied.  
Stoddart candidly acknowledged that he had a hard time remembering these events.  
He recalled receiving the soil testing report from AGAT Laboratories after the three  
tanks had been removed. Throughout his evidence, Stoddart at times seemed  
Page 55  
confused and lacking in clear memory. He said he did not specifically recall the  
Municipality looking for a letter in addition to the AGAT report.  
[193] Holland wrote to Anthony with respect to the AGAT report on February 7,  
2007. This email was not copied to Harding. Holland wrote:  
The environmental information has finally been received from the School Board.  
Attached is a copy of the report they received from AGAT Laboratories who did  
the testing of the soils on the site.  
This report covers the locations of the oil tank behind the junior high school, and  
the location of the diesel tank and furnace oil tanks behind the annex building.  
I have also sent a copy of Wayne Robicheau’s report to the Dept. of Environment  
for the removal of the above-ground tank behind the senior high school The DEL  
inspector, Colin Van Vulpen, has this report and has indicated it is acceptable.  
[194] Stoddart said he had no recollection of what transpired after the AGAT report  
was received and forwarded to the Municipality. He did not recall the closing. He  
recalled that the Board was later contacted about oil contamination (he assumed by  
Holland, but was not sure). To refresh his memory, Stoddart was referred to a letter  
he wrote on December 7, 2007:  
Thank your for your e-mail of December 5, 2007.  
At this time, the School Board has no reason to believe that it has any responsibility  
or liability in respect of the Barrington High School site which it returned to the  
Municipality last year.  
However, if Mr. Anthony is alleging that the School Board has some liability, it  
will be necessary to review any reports prepared by ECCO Environment in respect  
of the site before commenting further on those allegations.  
Given what appears to be Mr. Anthony’s position, if Mr. Anthony undertakes any  
remediation on the site, the School Board requests that it be given sufficient notice  
of those actions so that it can have someone in attendance to review the actions  
which have been taken.  
[195] Stoddart said he reported to his supervisor concerning the contamination  
found on the Property, but could not say with any certainty if this was passed on to  
the Board. Anthony had located a small amount of contamination, and Stoddart was  
instructed by his supervisor, Phil Landry, to have the Board clean that area, which  
he believed was done. He proposed to Holland on December 14, 2007, that the Board  
and Municipality agree to share the cost of removing the contaminated soil, but  
Page 56  
Holland responded on December 20, 2007, that the Committee of the whole Council  
had denied this request.  
[196] Stoddart was referred to a Jacques Whitford letter of October 10, 2011,  
addressed to him, concerning soil remediation at the Digby Consolidated High  
School, where contamination was found after removal of an underground tank. He  
was shown the affidavit of Lovitt Blades (Blades), sworn on February 24, 2014.  
Blades is a retired inspector for the Nova Scotia Department of Environment. His  
affidavit included a list of underground storage tanks. Stoddart confirmed that he  
knew there was a list, but he was not sure whether it had been provided to the  
insurers, nor could he recall being told that there were underground storage tanks  
that had to be removed. While Blades’s affidavit indicated that he was involved with  
that Board, Stoddart, without prompting, said that information could have been  
provided to his predecessor, Joe Bateman. Blades’s affidavit stated:  
15.  
During late 1994 or early 1995 (in the dead of winter?[in original?] I went  
to the Barrington Municipal High School (“BMHS”) in Barrington Passage for a  
preliminary site inspection regarding two USTs – one had been installed in 1956  
and the other in 1968. Both USTs were being used to hold fuel oil for the boiler  
heating systems in the school buildings.  
16.  
I was met at the site by Joe Bateman who was the maintenance supervisor  
for the school buildings. There were two buildings: the junior high which had been  
constructed in the 1950s and the senior high which was built in the 1960s.  
[197] Stoddart could not say who was responsible at the Board for the removal of  
the underground storage tanks in the late 1990s, and he could not recall the details  
of contamination at other schools discussed in Blades’s affidavit.  
[198] As to Anthony’s request, conveyed to him by Holland on November 15, 2006,  
Stoddart confirmed that he understood the kind of letter Anthony was seeking. He  
acknowledged that his response to Holland did not mention the request for a Jacques  
Whitford letter, and that he did not tell Holland verbally that the Board would not  
provide one. On December 5, 2006, Anthony forwarded Stoddart the email he had  
sent to Hogg on November 30, 2006, which stated, in part:  
5. The School Board is responsible for taking out the in ground oil tank where the  
buses gas up and is solely responsible for the cleanup and a letter from Jacques  
Whitford or acceptable qualified company stating that it is environmentally clean.  
I will then allow the tank to stay there until the end of the lease and therefor the  
Board doesn’t have to remove it within the next 60 days as planned or promised  
Therefore I will be closing (purchasing) the property prior to the tank removal but  
Page 57  
guaranteed from the Mun. of Barrington and the School Board that it will be  
cleaning up prior to you vacating the premises.  
[199] Stoddart confirmed that he neither responded to Holland nor to Anthony in  
relation to that email. Anthony again emailed Stoddart, copied to Holland, on  
December 6, 2006, indicating the possibility that the deal might close early, and  
adding, “I want to make sure the oil contamination is cleaned up and a letter from  
Jacques Whitford, etc.”  
[200] Stoddart said he attempted to email Holland in response to this message to  
advise that he would not be communicating with Anthony going forward. He  
confirmed in his testimony that he did not want to speak to Anthony directly. He  
testified that he did not want to discuss the transfer of the Property with Anthony.  
Donald Harding  
Overview of Practice and Friendship with Anthony  
[201] Harding testified his legal practice is a general practice, about half of which  
would have been property work in 2006 and 2007. He was called to the Bar in 1983.  
He acted for Anthony in real estate transactions, and they then became friends in the  
1990s. He described Anthony as “almost like a brother.” They spoke most days, and  
took family vacations together. Harding resided and worked in Shelburne, while  
Anthony was in the Barrington area. Harding described himself as Anthony’s  
“general counsel”, and said he had acted for Anthony on over a hundred occasions,  
handling both property cases and civil litigation, none going to trial. He said  
Anthony was a good client and this matter was the only “hiccup” they had. He added  
that Anthony was usually “a few steps ahead” of him, and called him a “deal-maker”  
and a “risk taker.” Harding described Anthony as a sophisticated client who could  
draft his own legal documents and who was familiar with legal proceedings.  
[202] Harding said Anthony had extensive experience with environmental  
assessments, both Phase I and Phase II. Anthony had dealt with environmental issues  
on properties in various places, including Truro, Liverpool, and Yarmouth. Harding  
said he played no role on those issues. As a general practitioner, he had no speciality  
in environmental issues. He said he did not have the knowledge to read Phase I or  
Phase II reports. He would consult Anthony about who he should refer clients to for  
environmental issues. He testified that Anthony never asked for any advice on  
environmental concerns, adding “no, he would have laughed at me.”  
Page 58  
[203] When he was retained as a lawyer for property purchases, Harding said,  
Anthony would reach an agreement first, then ask him to assist with financing and  
documentation. Anthony would handle the due diligence, and Harding handled  
conveyancing, and dealt with title and restrictive covenants. Anthony had his own  
surveyors. Anthony professed surprise at Harding’s suggestion that he was only  
retained for the “conveyancing aspects” of property deals. Harding said, however,  
that while Anthony may not have used the term “limited retainer”, he clearly  
expected Harding to address the conveyancing aspects.  
[204] Harding reviewed an undated letter to him from Anthony with regards to a  
property transaction, containing a list of 18 items, with some referenced as “Don to  
do”. Harding said this was typical from 2000 onward, that the work was broken  
down between himself and Anthony. Harding said he never reviewed environmental  
reports, which went straight to Anthony or to the bank. He said there was never a  
transaction where he thought Anthony did not understand the risk.  
The Property  
[205] Harding recalled that Anthony was actively pursuing the Property, but he did  
not have any specific recollection of the initial discussions, as he was not involved.  
Harding was referred to paragraph 12 of Anthony’s affidavit of October 15, 2018,  
where he stated:  
Harding knew over the years I had been involved in some land purchases during  
which environmental issues had occurred, and specifically soil contamination from  
old oil tanks; Harding was my lawyer on dozens of property transactions, and he  
and I spoke continually about all my land deals, all the issues that could arise, and  
how to deal with them, and my deal regarding the Property, while similar, was  
different insofar as Harding told me that the Board would make sure the land was  
clean before they could return it to the Muni.  
[206] Harding said he never would have told Anthony that the Board would make  
sure the land was clean before returning it to the Municipality. He denied discussing  
soil contamination with Anthony. Harding said he could not recall much about the  
first RFP, and said he was never asked by the Municipality to assist with the return  
of the Property from the Board.  
[207] Harding said he did not see Holland’s letter to Stoddart of June 20, 2006,  
requesting an environmental clearance from the Department of Environment and  
Labour or a Phase II Environmental assessment, until this proceeding. He said he  
was never consulted by Anthony concerning his response to any of the RFPs,  
Page 59  
including the undated “Proposal for former BMHS”, in which Anthony set forth the  
proposal from Anthony Properties. Harding said he only became involved after the  
proposal was accepted by the Municipality, when he was asked to put into effect the  
APS. Advised of Holland’s evidence that the Municipality sought his advice  
regarding the second RFP of October 2006, Harding said he deferred to Holland’s  
evidence. With regards to clause 2.3 of the October 2006 RFP, Harding said he may  
have drafted it or approved it. He denied seeing any of Anthony’s proposals prior  
to being accepted. He said he was not consulted on Anthony’s October 2, 2006  
correspondence to Holland. Nor was he consulted about Anthony’s pledge to buy  
the property “as is, No Phase I or other major concerns that could be a Major problem  
if this is done.”  
[208] Harding confirmed that “as is, where is” was a term of the trade indicating the  
buyer is accepting all the risks. In regard to Anthony’s letter of November 14, 2006,  
raising various “misc items”, Harding said the only thing he was asked about was  
whether he would take on a joint retainer on behalf of both Anthony’s company and  
the Municipality. Anthony did not consult him with regards to any other issues  
raised in that letter. Harding said he was not aware of any of the contents of this  
letter beforehand and did not know demolition would be started prior closing.  
[209] Harding said he was not aware of Anthony attending Council to discuss his  
proposal, and said his own first involvement with the transaction was on November  
15, 2006, when Holland sent him the following email:  
Last night Council agreed to accept the proposal on Anthony Properties Ltd. for the  
purchase of the former BMHS property.  
Please provide an Agreement of Sale for the property that will include the  
following:  
1. Sale price $25,001.  
2. Purchaser responsible for survey and title migration costs.  
3. Description is contained in the RFP document and will be confirmed by the  
survey.  
4. The Annex property will be included in the sale and transferred together with the  
rest of the property as soon as it is available from the School Board.  
Also, Council approved Mr. Anthony’s request for permission to begin demolition  
of the old “junior high school” portion of the building right away.  
Thank you,  
Brian  
Page 60  
[210] After receiving this email, Harding drafted a conflict letter and drew up the  
APS. Once the agreement was signed, he worked on the title migration. He said the  
only thing he added to the agreement was the ability of Anthony to walk away from  
the deal, in Clause nine.  
[211] Harding emailed Anthony on November 20, 2006, attaching Holland’s  
November 15 message with regards to the contents of the APS, and asked Anthony  
“anything else you want in there?” This was the message that Anthony delivered in  
hard copy to his office, with the notation, “Letter from Jacques Whitford, oil tanks  
are removed and up to Environment standards. Close Jan 22/06.” Harding testified  
that the lack of specific mention of a letter from Jacques Whitford in the APS was  
intended to protect Anthony, by being drafted more broadly. He drafted clause nine  
of the APS as follows:  
9.  
The Vendor makes no representations about the condition of the property  
but agrees to obtain from the School Board and or their consultants an opinion as  
to the removal of tanks and the condition of the property being satisfactory to the  
purchaser.  
[212] Harding testified that he drafted this clause in order to enable Anthony to have  
the ultimate say, so that he could use anyone and not be limited to Jacques Whitford,  
given that Anthony was using ECCO at that time. In Harding’s view, clause nine  
gave Anthony complete discretion. He believed they discussed this but could not  
recall the particulars of the conversation.  
[213] With respect to the “hold harmless” clause, Harding explained that by the time  
the agreement was drawn up, the building was already demolished. As a result, he  
thought the “hold harmless” clause was moot, because the mischief it was intended  
to rectify was the building.  
[214] Harding was referred to Mr. Wilson’s email to Holland of December 15, 2006:  
As an aside, the District should require the School Board to supply documentation  
evidencing no contamination on the site prior to the property reverting to the  
District – this may have already been done – especially where the School Board  
had been conducting fuelling operations there.  
[215] Harding said that this was essentially a moot point because the Municipality  
had received all the documents they were going to get from the Board. Harding said  
there was nothing new here and that Anthony had full knowledge. The fact is no  
Page 61  
such documentation was forthcoming which spurred the Municipality to change its  
RFP and re-issue the RFP with no environmental assurances.  
[216] Harding said his conflict letter (sent to both parties to the transaction) was  
based on the Code of Ethics of the Canadian Bar Association. He said it was not  
common for him to accept joint retainers, and he was very careful for whom he  
accepted it, because of the necessary level of client cooperation, communication,  
and sophistication. Harding did not think there would be any conflict in this  
instance, given that it was an “as is” purchase with nominal cost.  
[217] Harding provided Anthony and Lockyer a memorandum regarding the  
certificate of title. He included disclaimers in this letter, indicating, for instance, that  
lawyers cannot certify boundaries, the physical condition of the property, or  
environmental law compliance with regards to the property. The disclaimer about  
physical condition and environmental law compliance stated:  
Disclaimer – Physical Condition & Environmental Law Compliance: We give  
no opinion on either the physical condition of the Property or its compliance with  
environmental laws governing the Property; if you are concerned with either of  
these matters we encourage you to have inspectors qualified in those disciplines  
examine the Property on your behalf.  
[218] Harding testified that he had sent similar certificates of title to Anthony in  
every past property transaction. In this case, the APS was not signed, and the  
Plaintiff company took possession of the Property and began demolition before the  
joint retainer was signed.  
Knowledge of Transaction  
[219] During the litigation, Harding became aware that he had not been copied on  
the majority of the correspondence relating to the transaction. Harding’s evidence  
was that he was kept in the dark about many aspects of this deal. He was copied on  
communication extending the closing date, but otherwise Anthony was in control,  
specifically in respect of the environmental disclosure. He said he had not seen (until  
litigation) emails from Holland to Stoddart of November 15, 2006, referring to  
Anthony’s demand for a Jacques Whitford letter, nor had he seen Stoddart’s  
response indicating that the three month deadline should not pose a problem, but that  
once Anthony started demolishing the building they would not be responsible for  
any contamination of the soil that might be caused by the demolition. He also did  
not see Anthony’s November 21, 2006, email to Holland, regarding the oil tanks; the  
Page 62  
email from Holland to Stoddart, copied to Anthony, on November 21, 2006, and the  
response from Anthony to Holland, with regards to demolition and the pumping-out  
of the oil tanks behind the junior high; from Holland to Stoddart, and the response  
on November 21, concerning the closing date and the diesel pump and tank  
completion; from Anthony to Mr. Hogg and to Stoddart and Holland on November  
30 and December 5, 2006, respectively, with reference by Anthony to the Board  
being responsible for removing the ground oil tank and for the clean-up, and a letter  
from Jacques Whitford that it was environmentally clean; on December 5, 2006,  
regarding removal of the oil tank, between Holland and Anthony; from Stoddart to  
Anthony, Mr. Hogg, and Mr. Landry about a closing date, returning the property to  
the Municipality, and the use of the Board office; and from Anthony to Stoddart and  
Holland on December 6, 2006, with a response for Stoddart (mistakenly to  
Anthony), which should have gone to Holland, with regards to cleaning up oil  
contamination, and a letter from Jacques Whitford.  
[220] Harding said Anthony never advised him that Stoddart was refusing to  
communicate with him. Harding said his advice was not sought except with regards  
to the closing date.  
[221] Holland emailed Anthony on December 12, 2006, stating:  
The oil tank was removed from behind the senior high school yesterday.  
I’m waiting for the invoice from Wayne Robichaud.  
I have also called DEL about it and am waiting to hear back from them.  
They told me as long as an approved person removed the tank it was not necessary  
to have engineers report on the above ground tank unless there was a problem found  
during removal. As far as I know there were no problems.  
I have taken pictures of the site after the removal for our records.  
[222] Harding said he never saw this email prior to the litigation. The following was  
stated by Anthony in his affidavit of October 15, 2018, in para. 66:  
The Muni’s insurer voiced some pointed criticisms of the PSA and asked questions  
about the School Board and tank removal, about which issues Holland would have  
certainly consulted Harding, as it was he who had drafted the PSA…I was never  
advised of Holland’s discussions with Harding about the insurer’s PSA concerns.  
Why was the insurer concerned about the lack of a “hold harmless clause”; why  
would such a clause be recommended? Harding never addressed these issues with  
me, issue he clearly would have addressed with Holland, both as PSA was being  
drafted, and now after.  
Page 63  
[223] Harding said he did not recall any communications with Holland about the  
insurer’s concerns about the APS. Harding was also not aware of communications  
between Stoddart and Holland about the diesel pump and tank being removed from  
BMHS on January 15, 2007.  
[224] Harding confirmed that the January 22, 2007 closing date was extended by  
the parties. He recalled that the due diligence was not complete and Anthony was  
not ready to close. Harding said he was not consulted about the extension, but was  
copied on an exchange of emails between Holland and Anthony, on January 30 –  
February 1, 2007, in which Anthony stated that the “only outstanding issue is the  
Environment concerns which I would like proper paperwork.” Anthony and Holland  
then agreed to extend the closing date to February 16.  
[225] Harding recalled being on a cruise in the Caribbean with Anthony at the time  
of the January 30 – February 1 email exchange. The “outstanding issues” referred to  
by Anthony were environmental concerns. Harding testified that he was never  
consulted on what the “proper paperwork” was that Anthony wanted.  
[226] Harding was not aware until the litigation of the email of February 5, 2007,  
from Stoddart to Holland, indicating that he contacted Robichaud’s Pumping to  
provide a letter stating that the results met requirements, nor had he seen Holland’s  
email to Anthony on February 7, 2007, attaching the soil testing report received from  
AGAT Laboratories. Harding believed he received the AGAT report in some form,  
but Anthony did not speak to him about the results.  
[227] The next thing that happened was that Harding received a call from Anthony  
on February 13, indicating that he was ready to close and that he was satisfied with  
the testing based on the email of February 7. Harding recalled asking Anthony for  
a copy of the email for the file. Contained in Harding’s file is an email from Anthony  
to Harding, copied to Holland on Tuesday, February 13, 2007, with he subject,  
“finalizing School deal”, which stated:  
I reviewed the Environment report. Prepared to sign off and purchase the property  
as soon as possible. I would like copy of any keys that are out there especially for  
the Old Annex. Thank you or being so co-operative. I hope to see you at the Open  
House in the near future.  
[228] Anthony made no reference to additional testing or a Jacques Whitford letter.  
[229] When Anthony later complained about contamination on the Property,  
Harding referred him to alternative counsel. In December 2007, Anthony took the  
Page 64  
position with Holland that the Board was responsible for the contamination. There  
was subsequent correspondence between Stoddart and Holland, as well as some  
involving Anthony, between December 7, 2007, and February 13, 2008, relating to  
the contaminated soil: in particular, who was responsible and what steps would be  
taken. Harding said he was not aware of these emails nor was his advice sought at  
the time. Harding was aware that the Board had offered to contribute to the  
remediation of the contamination, but his advice was not sought, and he considered  
himself to be “out the loop.” Harding was referred to the letter dated February 18,  
2008, which he was instructed on behalf of the Municipality to write to the Board,  
care of Mr. Landry to express Council’s expectation that the Board would take  
necessary steps to remedy the contamination.  
[230] Harding said he was not involved in the matter thereafter, until Anthony  
alleged that he had committed professional negligence. He denied telling Anthony  
that the Property would be transferred “clean,” and denied any discussion with  
Holland that confirmed that commitment.  
[231] Harding became emotional speaking about the friendship between himself and  
Anthony, recounting that the two still continued to socialize for years after Anthony  
sued him. He testified that it took him a long time to adjust to the fact that he had  
lost a friend. Harding was asked to comment on para. 30 of Anthony’s affidavit,  
sworn October 15, 2018 which states:  
My proposal was accepted by the Muni council on November 14, 2006, and I was  
anxious to get the development process started. Although I of course knew Harding  
was the Muni’s lawyer, and that he was my lawyer as well, and that typically the  
same lawyer can’t act on behalf of both a buyer and a seller, I trusted Harding  
completely, and knew that he would always look after my interest, so I told Holland  
that I had no problem with Harding representing both sides.  
[232] Harding testified that he felt the same way. He described having an open  
retainer with Anthony, meaning that he would provide him with advice and open up  
files. Harding was referred to paragraphs 38 and 39 of Anthony’s affidavit of  
October 15, 2018, which states:  
Per Holland and Harding’s statements to me, the Board was going to make sure the  
Property had a “clean bill of health” before the Muni would accept its return, and  
the reason both those people were giving me those assurances, is because they both  
knew I would not purchase land that had contaminated soil.  
Therefore, because the Muni wasn’t going to accept the property unless it was  
environmentally clean, and because I wasn’t going to buy land that wasn’t  
Page 65  
environmentally clean, and Harding was the lawyer for both of us on the Property  
transaction, I was confident that Harding would protect both of us as against the  
Board who were the ones that had to make to ensure the Property was  
environmental clean.  
[233] Harding adamantly denied making any such representations or assurances. He  
was also referred to Anthony’s evidence of his own limited understanding of legal  
aspect of his property transactions:  
Harding also says that he and I have, “…spend countless hours discussing the  
commercial and legal aspects of transactions [I] have been involved in” – that  
statement is very true. And it is because of all those discussions over the years, that  
Harding would be acutely aware of my limitations when it comes to fully grasping  
the effect of certain legal verbiage and terms, and the manner in which they can  
impact my interests. And those limitations are exactly why I have relied on Harding  
for his advice and legal guidance over all those years, to protect me from pitfalls  
and to limit my potential mistakes – simply put, that’s what I paid him for.  
[234] Harding testified that he had no awareness of any limitations that Anthony  
had grasping legal terms. He noted that Anthony had dealt with hundreds of APS  
and legal documents. Harding agreed that he had suggested a buyer obtain a Phase  
I in the past (though not a Phase II), but said Anthony was so ahead of him with  
regards to the understanding of Phase I and Phase II assessments that he never had  
advice sought from him nor given.  
[235] With respect to the email from Mr. Wilson setting out the insurer’s  
suggestions, which Holland forwarded to him with a request to review and “include  
the requirements you believe necessary”, Harding said he did not tell Holland that  
he was not providing him with advice. In fact, Harding did not respond at all despite  
having read the email. Harding did forward a November 15 email from Holland,  
indicating what should be in the APS, to Anthony. This was the email that Anthony  
returned to him in hard copy, with an additional item handwritten on it. Harding  
recalled discussing Anthony’s insurance coverage on the property with Anthony and  
Holland, after November 14.  
[236] In reviewing the Wilson email, Harding took the view that the first two  
recommendations were unnecessary. Because the building was already demolished,  
it made the act of formalizing the agreement simpler, in Harding’s view. He was  
referred to the third recommendation in Mr. Wilson’s email as follows:  
As an aside, the district should require the school board to supply documentation  
evidencing no contamination on the site prior to the property reverting to the district  
Page 66  
– this may have already been done – especially where the school board have been  
conducting fuelling operations there.  
[237] As a result of clause 2.3 of the October RFP, it was determined that there was  
no need to address this recommendation. As part of the RFP process, the  
Municipality indicated that they had everything they expected from the Board, and  
there would be no representations made. Harding was of the view that because the  
RFP indicated there were no environmental representations to anyone, the clause  
was not needed, despite the fact that he had two clients on this property agreement.  
[238] Harding acknowledged he was consulted after the first RFP when Council  
looked for environmental reports, and that he wrote to Stoddart on June 2, 2006,  
about a clearance or Phase II, and never got a response. The reason he was consulted  
on the second RFP was to ensure the Municipality was not exposed because of the  
Board’s failure to respond about environmental assessments or Phase IIs. (He agreed  
that he made an error at paragraph 46 of his Affidavit in that regard.)  
[239] Harding agreed that the property, assessed at $1.5 million, was being sold for  
$25,000 because there was no guarantee about environmental cleanliness. This was  
why Anthony was getting a “steal of deal”.  
[240] Harding admitted that he did not tell Anthony that he would potentially lose  
the entire purchase price if the deal fell through, since it was the same as the deposit.  
He suggested that his was a simple legal concept that he thought Anthony would  
understand. This evidence was difficult to accept. The deposit being the whole  
purchase price is unusual. However, again the issue did not cause the loss the  
Plaintiff is claiming.  
[241] Harding could not recall any property transaction involving Anthony where  
the vendor was not the occupier of the land. Harding was asked whether he was  
confused about who owned the Property and that he had originally thought the  
Board, not the Municipality, held title. He testified that he knew that the  
Municipality held title to the Property throughout, despite statements on discovery  
to the effect that he was not sure who owned the land. Harding said he believed his  
discovery answers were incorrect, and that his recollection was better at trial. This  
is unlikely. However, even if Harding was initially confused as to ownership, it is  
clear on all the evidence that this was not an issue.  
[242] Anthony denied ever seeing the June 20, 2006, letter from the Municipality to  
the Board looking for an environmental clearance or Phase II. He denied that  
Page 67  
Holland, or anyone else, discussed this with him. Again, in the face of the language  
in the RFP, the bid and Anthony’s discussions at Council, he knew the risks he was  
taking.  
Law and Analysis  
The issues in this matter are as set out in Tri-County Regional School Board v.  
3021386 Nova Scotia Limited, 2021 NSCA 4. The following issues must be decided:  
57.  
In terms of the negligence claims, the issues are whether Mr. Harding’s  
behaviour breached the standard of care, whether the Company sustained damages  
and whether the damages were caused in fact and in law by Mr. Harding’s alleged  
breach…  
58.  
At the root of these questions is the nature of the dual retainer assumed by  
Mr. Harding and the basis on which the Company closed the purchase transaction.  
59. With respect to the claim of negligent misrepresentation, the issues are  
whether Mr. Harding made any representations and, if so, whether they were  
untrue, inaccurate, or misleading; whether Mr. Harding acted negligently in making  
any representations; whether the Company relied in an reasonable manner, on any  
negligent misrepresentation and whether such reliance was detrimental to the  
Company…  
[243] The plaintiff seeks special damages of $138,273.39 “as restitution for the  
expense incurred… to remediate a portion of the property,” and special damages of  
$689,300 (or such other amount discussed by the evidence at trial) “to remediate the  
soil contamination that remains on the Property.”  
[244] In short, the Plaintiff argues this transaction was new ground for Anthony and  
the Plaintiff company, and alleges that Harding failed to explain the alleged legal  
implications of the situation regarding the ownership versus possession of the  
Property to Anthony. This claim arises from the Board’s alleged failure to remediate  
after tank removal. On February 18, 2008 Harding wrote to the Board regarding the  
contamination, stating, “…the School Board was to provide full disclosure and  
complete environmental assessments as well as remedy any and all environmental  
contamination on the site in order for the Municipality to make use of or dispose of  
the land.” The Plaintiff argues that this assertion mirrors the assurances Harding  
allegedly gave Anthony in 2006.  
[245] Harding denies making any such assurances about the condition of the  
property to Anthony. Anthony had the option – as provided in the APS – to leave  
the deal but decided – on his own- without any Phase I or Phase II to close the deal.  
Page 68  
He did so at his own risk. Harding argues he did not fail in any respect in his  
representations.  
Negligent Misrepresentation  
[246] Turning now to the claims advanced against Harding. I begin with negligent  
misrepresentation.  
[247] The Supreme Court of Canada enumerated the elements required to establish  
negligence in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:  
3
A successful action in negligence requires that the Plaintiff demonstrate (1)  
that the defendant owed him a duty of care; (2) that the defendant’s behaviour  
breached the standard of care; (3) that the Plaintiff sustained damage; and (4) that  
the damage was caused, in fact and in law, by the defendant’s breach.  
[248] A negligent, though honest, representation made by one person to another, in  
circumstances where the person making the representation knows, or ought to know,  
that the other may rely upon it, may form the basis of an action in damages for  
financial loss resulting from such reliance: see Hedley Byrne & Co. v. Heller &  
Partners Ltd., [1964] A.C. 465, [1963] 2 All E.R. 575 (H.L.).  
[249] Iacobucci J. set out the elements as follows in Queen v. Cognos Inc., [1993] 1  
S.C.R. 87:  
33 The required elements for a successful Hedley Byrne, supra, claim have been  
stated in many authorities, sometimes in varying forms. The decisions of this court  
cited above suggest five general requirements: (1) there must be a duty of care  
based on a “special relationship” between the representor and the representee; (2)  
the representation in question must be untrue, inaccurate, or misleading; (3) the  
representor must have acted negligently in making said misrepresentation; (4) the  
representee must have relied, in a reasonable manner, on said negligent  
misrepresentation; and (5) the reliance must have been detrimental to the  
representee in the sense that damages resulted…  
[250] The first question is whether there was a representation in this case. I find as  
fact that Harding did not make a representation to the Plaintiff company, through  
Anthony, that could ground a claim in negligent misrepresentation.  
[251] The Amended Notice of Action states at paragraph 16H:  
16H. On or about November 20, 2006 Mr. Harding advised Mr. Anthony that the  
Plaintiff did not require the clause Mr. Anthony requested regarding the “letter from  
Page 69  
Jacque [sic] Whitford” because the School Board was going to look after cleaning-  
up the Subject Property. Mr. Anthony accepted the advice of Mr. Harding and as a  
result the agreement of purchase and sale did not contain a clause requiring a letter  
from Jacque[sic] Whitford regarding environmental standards.  
[252] I accept Harding’s evidence that he did not make any such representation to  
his client. Furthermore, Anthony asked for a clause in the agreement to have some  
environmental assurance satisfactory to him. Such a clause was included, and  
Anthony decided to close the property transaction with the AGAT report.  
[253] Even if I had not made this finding, there is significant doubt as to whether a  
claim for misrepresentation with respect to a future event is actionable in Nova  
Scotia. In Northern Petroleum v. Sydney Steel Corp. (1999), 180 N.S.R. (2d) 141  
(S.C.), affirmed at 2000 NSCA 104, Justice MacAdam stated at para. 61:  
In Nova Scotia, the tort of negligent misrepresentation is restricted, absent fraud, to  
statements of existing fact or statements that although containing references to the  
future are, at least, in part untrue, inaccurate or misleading in respect to an existing  
fact. The statements by the defendant as to the approximate quantities of bunker  
“6C” it would be using in the future were not such statements of existing fact and  
as such, cannot form the foundation for a claim in tort on the basis of negligent  
misrepresentation.  
[254] Given my finding on the evidence that the alleged misrepresentation did not  
occur as well as the state of law regarding future statements, in any event, I conclude  
that the Plaintiff has not made out the claim in negligent misrepresentation.  
Solicitor’s Negligence  
[255] The Plaintiff claims that Harding was negligent in advising and representing  
the parties to the transaction under the dual retainer. The Amended Notice of Action  
contains the following allegations:  
16I. The Plaintiff says that at no time did Mr. Harding inform them that the  
Municipality had requested a “hold harmless” clause in their favour be included in  
the purchase and sale agreement, or that Mr. Harding had advised the Municipality  
to include such a clause in the agreement.  
16J. The Plaintiff further says that at no time prior to the closing of the purchase  
did Mr. Harding advise the Plaintiff that a Phase II environmental assessment or  
similar investigation should be required to be performed on the Subject Property.  
16K. The Plaintiff says that had the vendor been required to conduct a Phase II  
environmental assessment, the wide-spread hydrocarbon contamination of the soil  
Page 70  
in the Subject Property would have been discovered, which would have allowed the  
Plaintiff to reassess the terms under which it would agree to purchase the Subject  
Property.  
…
30B. The Plaintiff claims against the defendant, Donald Harding, on the basis  
that he breached his duty owed to the Plaintiff as a reasonable and prudent solicitor  
in the circumstances, insofar as he did not advise the Plaintiff that a Phase II  
environmental assessment or similar investigation should be undertaken on the  
Subject Property prior to the closing of the purchase, and that Mr. Harding failed  
to advise the Plaintiff of the potential impact of the ‘hold harmless’ clause that was  
included in the purchase and sale agreement.  
30C. The Plaintiff claims against the Defendant, Donald Harding, on the basis  
that he breached his agreement with the Plaintiff and the terms of his retainer, and  
breached his duty owed to the Plaintiff as a reasonable and prudent solicitor in the  
circumstances, insofar as he failed to recognize and advise the Plaintiff as to the  
potential for a dispute and conflict to develop once the Plaintiff raised its concerns  
regarding the removal of oil tanks and assurances as to environmental standards.  
30D. The Plaintiff claims against the Defendant, Donald Harding, on the basis  
that he breached his agreement with the Plaintiff and the terms of his retainer,  
insofar as he held confidential discussions with the Defendant, Municipality,  
regarding the inclusion of the ‘hold harmless’ clause in the purchase and sale  
agreement, and those discussions were not shared with the Plaintiff.  
[256] Harding acknowledges he owed a duty of care to the Plaintiff in the course of  
his representation in relation to this property transaction. The next element is the  
standard of care.  
[257] The Nova Scotia Court of Appeal considered the standard of care for  
professional negligence in R. v. Gardner and Fraser, 2021 NSCA 52. Beveridge  
J.A., for the court, said the following (citations omitted):  
[69] In civil litigation that alleges negligent conduct by a member of a trade or  
profession, the general rule is evidence from someone with expertise in that  
occupation or undertaking is usually necessary in order for the trier of fact to  
determine the parameters of the standard of care…  
…
[72] In civil cases, the failure to identify the appropriate standard of care  
constitutes legal error … In criminal cases with the life and liberty of the accused  
at stake, it cannot be any less so.  
[73]  
How then is a trier of fact to determine what the content of the standard of  
care is and whether it was breached? These are quintessentially questions of  
Page 71  
fact. They can be determined, as described above, by credible expert opinion  
evidence or other evidence that permits the trier to draw the necessary  
inferences. That evidence may include what others do or should do in similar  
circumstances and any policies or directives relevant to the conduct.  
[258] For a claim of professional negligence against a lawyer, the lawyer’s conduct  
and conformity with the expected standard of care is evaluated on the basis of the  
“reasonably competent solicitor”: Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147.  
But what would a “reasonably competent solicitor” do in these circumstances?  
[259] While the “reasonably competent solicitor” standard applies in most  
negligence claims in this proceeding, the Plaintiff’s claim against Harding is also  
cast as an alleged failure to warn it to undertake a Phase II Environmental Site  
Assessment.  
[260] In Fasken Campbell Godfrey v. Seven-Up Canada Inc., et al (2000), 47 O.R.  
(3d) 15 (Ont. C.A.), the Ontario Court of Appeal affirmed the principle that there is  
no “general retainer” standard of care requiring a lawyer to consider and safeguard  
all aspects of a client’s interests, including the avoidance of risk. The Court  
explained the interplay of surrounding circumstances, instructions and client  
sophistication with the duty to warn in the following terms:  
[38] The trial judge correctly set out the law regarding a solicitor's duty to warn a  
client about the risks involved in a transaction or course of action. He summarized  
the case law in this area at p. 471:  
Defining the scope of the solicitor's retainer is an essential element in cases  
where the client's complaint is that the solicitor failed to warn the client of  
a risk. In Midland Bank Trust Co. v. Hett, Stubbs & Kemp, [1978] 3 All E.R.  
571 (Ch. D.), Oliver J. stated that there was nothing like a "general retainer"  
in the sense that a solicitor is duty bound to consider all the aspects of the  
client's interests generally when consulted for a particular aspect of the  
problem (at 583). The duty to warn only arises when an ordinarily  
competent and prudent solicitor would have issued a warning, taking into  
account all of the surrounding circumstances, including the form and nature  
of the client's instructions and the sophistication of the client.  
[261] In Fasken, supra, the court held that at the point the lawyer was retained, the  
deal was a fait accompli. This is the case in the matter before me. The response to  
the RFP was completed and the offer accepted before Harding was even approached  
to accept a dual retainer.  
Page 72  
[262] The duty and standard of care for lawyers was outlined by the Supreme Court  
of Canada in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147:  
66  
A solicitor is required to bring reasonable care, skill and knowledge to the  
performance of the professional service which he has undertaken. See Hett v. Pun  
Pong (1890), 18 S.C.R. 290 at 292 (S.C.C.). The requisite standard of care has been  
variously referred to as that of the reasonably competent solicitor, the ordinary  
competent solicitor and the ordinary prudent solicitor. See Mahoney, Lawyers —  
Negligence — Standard of Care (1985), 63 Can. Bar Rev. 221. Hallett J., in  
referring to the standard of care as that of the “ordinary reasonably competent”  
solicitor, stressed the distinction between the standard of care required of the  
reasonably competent general practitioner and that which may be expected of the  
specialist. It was on the basis of this distinction that he disregarded the evidence of  
one of the expert witnesses concerning the practice in real estate transactions  
involving corporations.  
[263] The distinction between a general practitioner and a specialist was also  
addressed in Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton,  
Little & Jenkins (1992), 29 R.P.R. (2d) 271 (Ont. Ct. J.), varied on other grounds,  
(1996), 88 O.A.C. 398:  
102 Where a solicitor holds himself out to his client as having particular expertise  
in a given area of law, such as in respect of sophisticated real estate transactions, a  
higher standard applies. The requisite standard is not that of a reasonably competent  
solicitor or ordinary prudent solicitor, but that of a reasonably competent expert in  
commercial real estate transactions.  
[264] Where a civil claimant alleges negligent conduct by a member of a trade or  
profession, the general rule is that evidence from an expert in that field is usually  
necessary in order for the trier of fact to determine the parameters of the standard of  
care. There are cases, however, where the breach of the standard of care will be  
apparent without expert evidence. There are at least two recognized general  
exceptions where expert evidence is not needed:  
(a)  
for non-technical matters or those of which an ordinary person may be  
expected to have knowledge; and  
(b) where the impugned actions of the defendant are so egregious that it is  
obvious that his or her conduct has fallen short of the standard of care,  
even without knowing precisely the parameters of that standard.  
[265] In Poulain v. Iannetti, 2015 NSSC 181 (reversed, but not on this point, 2016  
NSCA 93), Rosinski J. held that the defendant lawyer was negligent in failing to  
Page 73  
provide advice to the Plaintiff regarding loss of income benefits under the Section B  
provisions of a standard automobile policy. In the course of his reasons, he  
considered when expert evidence is necessary to prove solicitor negligence:  
[48] In Central Trust Co., supra, both the Plaintiff and defendant called expert  
opinion evidence from senior Nova Scotia lawyers. In that case, the court concluded  
at para. 63:  
With respect, I am in agreement with the conclusion of the Appeal Division  
on the issue of negligence. The fact that the capacity of a corporation to  
borrow and give security may be limited or subjected to certain conditions  
by the provisions of the applicable Companies Act is such basic knowledge  
that a reasonably competent solicitor must be held to possess it, whether he  
is a general practitioner or a specialist.  
[49] Notably, in Poulain v. Iannetti, 2013 NSCA 10, at para. 20, Justice  
Hamilton stated:  
Mr. Poulain's testimony that he retained Mr. Iannetti to represent him on his  
Section B claim gave rise to a duty of care, as the judge recognized. Mr.  
Poulain's evidence that the only advice he received from Mr. Iannetti, with  
respect to whether he should accept the settlement offer with respect to his  
entitlement to wage replacement benefits under Section B, was that he  
should take it if he needed the money, allows an inference to be drawn that  
the standard was breached. There was nothing technical in this situation.  
Such advice would not inform Mr. Poulain of what he was giving up -- the  
possibility of receiving 14 years, as opposed to two years, of wage loss  
replacement benefits under Section B if his evidence that he is totally unable  
to work as a result of the injuries he sustained in the accident is accepted.  
An ordinary person without particular expertise could draw an inference  
that this frugal advice, if it was the advice given by Mr. Iannetti, was  
negligent without the need for expert evidence.  
[266] Professional negligence claims against a lawyer are unique because the judge  
adjudicating the claim has expertise in the subject occupation. Neither of the two  
exceptions articulated above relies on a judge’s expertise as a former lawyer, and the  
case law is unsettled as to the use that can be made of that expertise in determining  
the standard of care. What does seem clear, however, and consistent with common  
sense, is that a judge should only take judicial notice of the standard of care expected  
of a lawyer in cases where the court collectively (and not just individual judges on  
the court) could make a finding without the assistance of expert evidence.  
[267] There are cases that support a judge drawing from the court’s experience in  
determining the standard of care without an expert, and there are cases which say  
Page 74  
the opposite. Those cases where no expert was required include: Poulain v. Iannetti,  
supra; Malton v. Attia, 2013 ABQB 642; ter Neuzen v. Korn, [1995] 3 SCR 674;  
Krawchuk v. Scherbak, 2011 ONCA 352, leave to appeal denied, [2011] S.C.C.A.  
No. 319; and, Urquhart v. MacIsaac, 2017 NSSC 313, affirmed 2019 NSCA 25.  
The following are cases where an expert was needed: Mraz v Herman, 2016 ABCA  
313; Adeshina v. Litwiniuk & Co., 2010 ABQB 80; Zink v. Adrian, 2005 BCCA 93,  
at para 44; and Tran v. Kerr, 2014 ABCA 350.  
[268] Tran v. Kerr, supra, merits a closer look. In that case, the appellant lawyer  
represented multiple parties in what turned out to be a fraudulent real estate  
transaction. The clients included the respondent, who acted as the “straw buyer” in  
the mortgage fraud scheme, and who ultimately ended up with a deficiency judgment  
against her in the amount of $66,136. After paying the default judgment, the  
respondent sued the appellant, alleging that he was negligent in failing to advise her  
of the consequences of executing a high ratio mortgage, and that he acted in conflict  
of interest. The appellant admitted acting as the respondent's lawyer in the  
transaction. He denied knowing that the transactions were fraudulent or otherwise  
suspect. He also alleged that the respondent caused or contributed to her own losses  
by entering into a transaction that she knew was suspicious.  
[269] Notwithstanding the absence of expert evidence on the standard of care, the  
trial judge held that the appellant was liable to indemnify the respondent for the full  
amount of the deficiency judgment. The appellant appealed on multiple grounds,  
arguing, among other things, that the trial judge erred in not requiring expert  
evidence on the standard of care. On this issue, the Court of Appeal wrote:  
21 When a suit is brought for professional malpractice (either in the form of a  
breach of contract claim, or for negligence) it is customary, and usually necessary,  
for there to be expert evidence on the standard of care: ... There are cases where the  
breach of the standard of care will be apparent without expert evidence: ... There is  
also possibly a narrow exception with respect to malpractice by lawyers. Since all  
judges were once lawyers, and are familiar with the practice of law and the legal  
system generally, there are cases where a judge can take judicial notice of the  
standard of care expected of lawyers.  
22 In this case the trial judge dealt with the absence of expert evidence by reference  
to his own experience:  
Well, you're wrong. You're talking to a lawyer that practised real estate law  
for 26 years in Medicine Hat. You're talking to a judge who, as a lawyer,  
sat for 10 years on the ethics committee as they considered the amendment  
to the Code of Conduct that dealt with lawyers representing more than one  
Page 75  
client. There is no question that the -- there is a general knowledge available,  
particularly to this Court, about what the standards are that faced the lawyer  
who was acting for more than one client. There is plenty of evidence in front  
of me that would suggest that that standard had not been made - met, rather  
- and that there are numerous breaches by this lawyer - on the evidence  
we've heard, just the Plaintiffs - by this lawyer of the course of conduct that  
was required of any lawyer acting on behalf of any client to a real estate  
transaction. I don't even have to look at your brief. The application for a  
non-suit is dismissed. Thank you, Sir.  
The appellant correctly argues that the trial judge erred in proceeding in this  
fashion.  
23 As the professions (including the legal profession) become more highly  
specialized, the circumstances in which a trial judge can properly take judicial  
notice of the standard of care become narrower and narrower. Judicial notice is only  
properly taken in cases where the court collectively (and not just individual judges  
on the court) could make a finding of the standard of care without the assistance of  
expert evidence: Malton v. Attia, 2013 ABQB 642 at para. 214, 90 Alta LR (5th) 1;  
MacDonald v. Taubner, 2010 ABQB 60 at para. 330, 485 AR 98. Judicial notice  
can only be taken of facts that are notorious and undebatable.  
24 The trial judge inappropriately relied on his own experience in setting the  
standard of care. His personal experience was not shared by other members of the  
Court. Other judges who had different career paths (e.g. they were labour lawyers,  
insurance lawyers, criminal law lawyers, etc.) would not have been able to take  
judicial notice of the standard of care of a conveyancing lawyer in Calgary in 2006.  
25 Many of the standard procedural safeguards are absent when a trial judge sets a  
standard of care in the absence of expert evidence. The rules require that expert  
opinions (and the witness's qualifications) be disclosed in advance. Cross-  
examination is available on both, and the opposing side has the option of calling  
rebuttal evidence. None of these opportunities are available when the trial judge  
takes judicial notice of the standard of care, so ". . . courts should be restrained and  
cautious about setting the standard of care absent such evidence": Adeshina v.  
Litwiniuk & Co., 2010 ABQB 80 at para. 175, 24 Alta LR (5th) 67. [Emphasis  
added]  
[270] The court noted that in the absence of expert evidence, one way to establish  
the standard of care would be through admissions by the defendant (para. 26).  
[271] In Mraz v. Herman, supra, a different panel of the same court endorsed the  
view that “only rarely” should judges determine the standard of care without expert  
evidence:  
42 Some additional comments are necessary as regards the trial judge's finding  
about evidence of the standard of care of a lawyer.  
Page 76  
43 The starting point is Adeshina v. Litwiniuk & Company, 2010 ABQB 80, 483  
AR 81 at 160-176. After reviewing the leading authorities, the trial judge held at  
para 175:  
Expert evidence is not the only available source of relevant information, but  
there are serious risks to a plaintiff who fails to tender expert evidence on  
the standard of care expected. The Plaintiff always and ultimately carries  
the burden of proof and non-technical matters are limited. While it is true  
that a court remains free to accept all, part, or none of an expert's testimony,  
evidence on standard of care is informed by those currently engaged in the  
enterprise at issue. Their opinions are tested by cross examination. In my  
view courts should be restrained and cautious about setting the standard of  
care absent such evidence. [Emphasis added in Mraz]  
44 In Malton v. Attia, 2013 ABQB 642, 573 AR 200 the trial judge cited Southin  
JA's obiter concurring reasons in Zink v. Adrian, 2005 BCCA 93, 208 BCAC 191 :  
43 ... in cases of alleged negligence by a solicitor, judges can only rarely  
make such a finding in the absence of expert evidence as to the standard of  
a competent solicitor conducting the business in question.  
44 The judge can only properly do so, in my opinion, if the matter is one of  
"non-technical matters or those of which an ordinary person may be  
expected to have knowledge." ... There is an underlying reason - the expert  
witness can be cross-examined with a view to showing he knows not  
whereof he speaks. But the parties have no means of discrediting a judge's  
implicit assertion that he knows the proper way to conduct a certain kind of  
legal business. One must not overlook that the reason some judges are  
judges is that whilst they were practising the profession they were of a  
standard far above that of the ordinary reasonably competent member of the  
profession.  
45 Malton also cited the leading majority decision of the British Columbia Court  
of Appeal, Roberge v. Huberman, 1999 BCCA 196, 121 BCAC 28:  
[56] There may be cases in which the issue as to standard of duty turns so  
much on the question of "appropriate documentation" that only lawyers  
practising in the particular field can throw light on the question. Evidence  
of that kind is undoubtedly useful in some cases, most commonly where the  
issues involve abstruse questions of conveyancing practice. The issues in  
this case are sufficiently removed from such areas that it may be doubtful  
that expert evidence would be helpful to the court. The test for determining  
whether expert evidence is necessary was stated thus in R. v. Abbey, [1982]  
2 S.C.R. 24 by Dickson J. (as he then was), speaking for the court, at 42:  
With respect to matters calling for special knowledge, an expert in  
the field may draw inferences and state his opinion. An expert's  
function is precisely this: to provide the judge and jury with a ready-  
made inference which the judge and jury, due to the technical nature  
Page 77  
of the facts, are unable to formulate. "An expert's opinion is  
admissible to furnish the Court with scientific information which is  
likely to be outside the experience and knowledge of a judge or jury.  
If on the proven facts a judge or jury can form their own conclusions  
without help, then the opinion of the expert is unnecessary": (R. v.  
Turner (1974), 60 Cr. App. R. 80, at p. 83, per Lawton L.J.).  
46 The judge in Malton concluded that: "judicial knowledge of and expertise on  
the conduct of legal practice should flow from the institution involved, rather than  
the background and experience of a particular judge. ... a judge should not evaluate  
lawyer conduct from the judge's own personal experience, but rather via judicial  
notice, which flows from things a finder of fact knows as common knowledge":  
para 214. In Tran v. Kerr, 2014 ABCA 350, 584 AR 306 this Court cited the  
underlined passage in the quote in para 43 above from Adeshina with approval  
noting that "[m]any of the standard procedural safeguards are absent when a trial  
judge sets a standard of care in the absence of expert evidence": para 25. The Court  
also cited Malton with approval at para 23:  
As the professions (including the legal profession) become more highly  
specialized, the circumstances in which a trial judge can properly take  
judicial notice of the standard of care become narrower and narrower.  
Judicial notice is only properly taken in cases where the court collectively  
(and not just individual judges on the court) could make a finding of the  
standard of care without the assistance of expert evidence.  
While Tran confirmed that the law was correctly stated in Malton, Tran did not  
comment on the application of the rule to the facts of that case.  
47 The bulk of modern authority suggests that in most circumstances judges are  
not ideally situated to determine whether a lawyer's standard of care in a particular  
circumstance was sufficient to discharge his or her fiduciary obligations. ...  
48 When lawyer negligence is alleged but judicial notice has not been taken, there  
are three reasons why expert evidence is preferable: first, specialized areas of  
practice are becoming more common; second, once appointed, judges become  
quickly removed from day-to-day details of practice; and third, judges cannot be  
cross-examined on their opinion. [Emphasis added]  
[272] In Malton v. Attia, supra, the court reviewed the principles underlying the  
view that a trial judge should not alone wade into the standard of care for a lawyer  
as follows:  
42 Several general principles are advanced by Attia for why a judge cannot evaluate  
the standard of care for a lawyer:  
a) a trial judge, as expert, cannot be tested by cross-examination, negating  
a "pillar of our adversarial legal system";  
Page 78  
b) a trial judge may inappropriately apply an elevated standard of care based  
on the judge's 'pre-judicial' practice as a lawyer;  
c) a trial judge's knowledge of legal practice may be obsolete due to a long  
period on the bench;  
d) where a trial judge has specialized in a particular kind of litigation, such  
as family law, criminal law, or corporate matters, the trial judge will lack  
the necessary experience to evaluate litigation as a whole; and  
e) a senior lawyer would provide a helpful context:  
i. in aspects of legal practice in which a trial judge is not involved,  
such as "client management, strategy concerning claims to advance  
as the start or in trial, settlement offers, etc",  
ii. specialized areas of practice,  
iii. with specialized clients, such as persons with limited resources,  
or large institutional clients, and  
iv. as that lawyer can evaluate colleagues from a comparable  
position.  
[273] In Johnson (c.o.b. Chornoby Johnson Law Office) v. Demerais, 2017 SKQB  
316, DuFour J. helpfully summarized two distinct lines of authority, in a case where  
expert evidence had not been called at trial:  
14 One question to be addressed here is whether, in these particular circumstances,  
opinion evidence from an "expert lawyer" was required for Ms. Demerais to  
discharge the onus to prove that Ms. Johnson was negligent in the way she handled  
the family law proceeding. The law in this respect is not settled.  
15 Some courts have determined that there need not be an opinion from an expert  
as to that which a reasonable lawyer would have done in the particular  
circumstances. In Janik v. Stillman, 2016 ONSC 1801, the court held that judges  
are familiar with the practice of law and the legal system generally and, as such,  
they are often able to determine the applicable standard of care without the  
assistance of an expert. In Malton v. Attia, 2013 ABQB 642, 90 Alta LR (5th) 1  
[Malton], the court held, at paragraph 134, "a trial judge brings with him or herself  
a body of knowledge that generally makes expert lawyer standard of care evidence  
unnecessary.”  
16 Another line of authority holds that only rarely should judges determine the  
standard of care without expert evidence. At paragraph 43 of Mraz v. Herman, 2016  
ABCA 313, 42 Alta LR (6th) 1, the Alberta Court of Appeal agreed with Adeshina  
v. Litwiniuk & Co., 2010 ABQB 80, 24 Alta LR (5th) 67, that, "evidence on  
standard of care is informed by those currently engaged in the enterprise at issue"  
and, "courts should be restrained and cautious about setting the standard of care  
absent such evidence." At paragraph 48, the court held that there are three reasons  
Page 79  
why expert evidence is preferable: "first, specialized areas of practice are becoming  
more common; second, once appointed, judges become quickly removed from day-  
to-day details of practice; and third, judges cannot be cross-examined on their  
opinion." The underlying rationale in respect of the last factor was explained by the  
British Columbia Court of Appeal in Zink v. Adrian, 2005 BCCA 93 at para 44,  
[2005] 4 WWR 420: "... the expert witness can be cross-examined with a view to  
showing he knows not whereof he speaks. But the parties have no means of  
discrediting a judge's implicit assertion that he knows the proper way to conduct a  
certain kind of legal business."  
17 In Tran v. Kerr, 2014 ABCA 350, [2015] 1 WWR 70, the Alberta Court of  
Appeal held that the trial judge erred by applying a standard of care based, not on  
expert opinion evidence, but on his own experience as a former real estate lawyer.  
At para. 23, the Court of Appeal held that judges can take judicial notice of the  
standard of care, "... in cases where the court collectively (and not just individual  
judges on the court) could make a finding of the standard of care without the  
assistance of expert evidence" and, even then, "[j]udicial notice can only be taken  
of facts that are notorious and undebatable."  
18 It has also been held that expert opinion evidence in professional negligence  
actions is not necessary where "the impugned actions of the defendant are so  
egregious that it is obvious that his or her conduct has fallen short of the standard  
of care, even without knowing precisely the parameters of that standard"  
(Krawchuk v Scherbak, 2011 ONCA 352 at para 135, 106 OR (3d) 598).  
[274] Justice DuFour continued:  
19 Whether the conduct of the lawyer was clearly egregious or whether the facts  
are notorious and undebatable or whether all or only few members of the court  
might have the ability to divine the standard can be relevant factors to consider, but,  
in my view, they are but factors that fit into a larger matrix. Here, I have found  
guidance by referring to the established doctrine of the admissibility of expert  
opinion, concepts of basic fairness, the reputation of the administration of justice  
and access to justice.  
20 First, admissibility as set out in R v Mohan, [1994] 2 SCR 9. Two of the four  
tests for admissibility established by the Supreme Court are relevant to this  
discussion - that the opinion be proffered by a properly qualified expert and the  
necessity of the opinion in assisting the trier of fact.  
21 In my view, it is anathema to the judge's role as a finder of fact to self-declare  
oneself to be an expert, eschewing the safeguards that accompany a proper inquiry  
into qualifications: direct examination and cross-examination. Judges, whether or  
not they feel personally qualified to divine the standard of care to be applied, ought  
to tread cautiously before entering too far into the fray.  
22 Then, necessity. In Malton, at para. 165, the court asked "whether an expert,  
presumably a lawyer, can tell me anything that I do not already know about  
Page 80  
appropriate conduct for a lawyer who runs a civil lawsuit in the Alberta Court of  
Queen's Bench" and answered, at para. 175, "I disagree with [the party] who argues  
I need an expert lawyer to tell me how to do my job." I see the issue somewhat  
differently. It is not that the expert lawyer is telling the judge how to do his or her  
job, it is the expert opining on how the defendant lawyer did his or her job.  
23 There will be instances where an expert opinion as to the standard of care to be  
applied to a lawyer's conduct will not be necessary, such as a very simple,  
straightforward case involving a lawyer who has missed a limitation period. Even  
missed limitation periods, however, can be sufficiently complex so as to require  
expert opinion going to the applicable standard of care in the particular  
circumstances at bar ...  
24 There is also the issue of basic fairness to the parties. The judge as expert  
presents as an impenetrable black box. The parties are faced with a nigh on  
impossible task of trying to figure out how to prepare and present their cases if they  
do not know which judge will hear the case, what that unknown judge's opinion  
might be or the underlying assumptions upon which it will be based. Until, of  
course, after judgment is rendered. Too late.  
25 These considerations should not, in my view, end the analysis. The court must  
also take into account access to justice. Generally speaking, lawyers who have risen  
to the level in the profession where they are recognized as experts will charge a  
fairly hefty hourly rate. As such, "[m]ost Canadians cannot afford to sue when they  
are wronged ... [w]ithout an effective and accessible means of enforcing rights, the  
rule of law is threatened." (Hryniak v. Mauldin, 2014 SCC 7 at para 1, [2014] 1  
SCR 87 [Hryniak]).  
26 Flowing from the above are the implications for the reputation of the  
administration of justice. There is a delicate balance. Proceeding without an expert  
lawyer's opinion, on the one hand, may leave the impression that the ultimate  
decision was determined by "the length of the Chancellor's foot" or skewed by  
individual bias. Requiring an expert opinion, on the other hand, may lead to only  
the well-heeled being able to pursue legal redress.  
27 In summary, in my view, there are no words or phrases or general descriptions  
that are sufficiently magical in themselves to lead to a just determination in all cases  
as to whether expert lawyer opinion evidence going to standard of care is necessary.  
Courts ought to be cautious before proceeding without it, but not so much that  
regular folks with limited resources are denied the opportunity to have their  
complaints against lawyers adjudicated. Established practice and doctrine must  
sometimes yield to considerations of "proportionality, timeliness and affordability"  
(Hryniak at para 56).  
[275] I also note the comments of Stewart, J. in Gilbert v. Marynowski, 2017 NSSC  
227, holding that expert evidence was required on the issue of solicitor’s negligence.  
Page 81  
35. There is ample authority for the principle that "as a general rule, it will not be  
possible to determine professional negligence in a given situation without the  
benefit of expert evidence": Krawchuk v. Scherbak, 2011 ONCA 352, [2011] O.J.  
No. 2064 (Ont. C.A.), at para. 132, leave to appeal refused, [2011] S.C.C.A. No.  
319 (S.C.C.). The Nova Scotia Court of Appeal has similarly held that professional  
malpractice will normally require expert evidence on issues such as standard of care  
and causation: see Szubielski v. Price, 2013 NSCA 151, [2013] N.S.J. No. 685 (N.S.  
C.A.), at para. 12 (dealing with alleged dentist's malpractice).  
36  
In Krawchuk the Ontario Court of Appeal identified two exceptions to the  
general rule that determining a professional standard of care requires expert  
evidence:  
133 The first exception applies to cases in which it is possible to reliably  
determine the standard of care without the assistance of expert evidence. As  
explained by Southin J.A. at para. 44 of Zink, this will be the case only  
where the court is faced with "nontechnical matters or those of which an  
ordinary person may be expected to have knowledge."  
. . .  
135 The second exception applies to cases in which the impugned actions  
of the defendant are so egregious that it is obvious that his or her conduct  
has fallen short of the standard of care, even without knowing precisely the  
parameters of that standard: see Cosway v. Boorman's Investment Co., 2008  
BCSC 1482, at para. 35. As can be seen, this second exception involves  
circumstances where negligence can be determined without first identifying  
the parameters of the standard of care rather than identifying a standard of  
care without the assistance of expert evidence.  
[276] Based on the jurisprudence, the following principles appear to be  
uncontroversial:  
1.  
2.  
3.  
Where a suit is brought for professional malpractice it is customary, and  
usually necessary, to lead expert evidence on the standard of care;  
However, there are cases where the breach of the standard of care will  
be apparent without expert evidence;  
There are at least two recognized specific exceptions where expert  
evidence is not needed:  
(a) where the impugned actions of the defendant are so egregious  
that it is obvious that his or her conduct has fallen short of the standard  
of care, even without knowing precisely the parameters of that standard;  
and,  
Page 82  
(b) for non-technical matters or those of which an ordinary person  
may be expected to have knowledge.  
[277] Where things get difficult is with respect to the unique role of judges’  
experience with the practice of law and the legal system generally. The Alberta Court  
of Appeal stated in Tran that “there are cases where a judge can take judicial notice  
of the standard of care expected of lawyers” and that “[j]udicial notice is only  
properly taken in cases where the court collectively (and not just individual judges  
on the court) could make a finding of the standard of care without the assistance of  
expert evidence”: paras. 21 and 23. The same court in Mraz stated that “[t]he bulk  
of modern authority suggests that in most circumstances judges are not ideally  
situated to determine whether a lawyer’s standard of care in a particular  
circumstance was sufficient to discharge his or her fiduciary obligations”: para. 47.  
[278] With respect to the standard of care expected of a lawyer working under a  
joint retainer, the case law suggests that the lawyer is required to bring reasonable  
care, skill and knowledge to the performance of the services the lawyer undertakes  
to perform. The standard includes advising the client on all matters relevant to the  
retainer, as is reasonably necessary; protecting the client’s interests; warning the  
client about any risks of the transaction; and drawing the client’s attention to, and  
explaining unusual clauses in a document that might affect the client’s interests. If  
the lawyer obtains material information from one client, the lawyer must share that  
information with each of the other clients. The lawyer must not favour one client  
over another.  
[279] The Plaintiff submitted an excerpt from LIANSwers (May 2021) which is, on  
its face, a newsletter with information to assist lawyers reduce the likelihood of being  
sued for malpractice, issued by the Lawyers Insurance Association of Nova Scotia.  
On the face of the document is the following quote: “The material presented is not  
intended to establish, report, or create the standard of care for lawyers.” The Plaintiff  
nevertheless relied on this document in closing to describe the standard of care  
applicable to Harding. This document speaks to the unbundling of legal services  
and the risk to clients in doing so. In addition, the document has remarks relating to  
conveyancing practices and limited-scope retainers. The following excerpt was  
emphasized by the Plaintiff:  
A lawyer who accepts a limited scope retainer must advise the client about the  
nature, extent and scope of services that the lawyer can provide and must confirm  
in writing to the client what services will be provided, prior to completing the work.  
Page 83  
The lawyer should set out in writing the limitations of such limited scope retainer  
and caution the client on the risks.  
[280] This document then references a 2012 Rule in the Nova Scotia Barristers  
Society Code of Professional Conduct. It does not refer back to expectations in 2006  
or 2007. As such, it is, to that extent, irrelevant to the scope of duty at the relevant  
time. Furthermore, there is no discussion or guidance in relation to lawyers  
practicing in rural areas where the availability of legal services are not plentiful.  
Does this affect the standard? Did it back in 2006-2007? No guidance has been  
furnished to the court. I place no weight on this material.  
[281] The Plaintiff advanced this claim without any expert evidence addressing the  
standard of care. The court is left asking itself how to determine the standard of care  
in a dual-retainer, real estate transaction, in a rural area, in 2006-2007, in relation to  
advice concerning environmental contamination?  
[282] There is no dispute that a lawyer owes a client a fiduciary duty to act in the  
best interests of that client (Boardman et al. v. Phipps, [1966] 3 All E.R. 721 (H.L.);  
Davey v. Woolley (1982), 35 O.R. (2d) 599 (Ont. C.A.), leave to appeal to S.C.C.  
refused, (1982), 37 O.R. (2d) 499n.  
[283] As stated in R. v. Neil, 2002 SCC 70, a lawyer has a duty to avoid conflicting  
interests; a duty of commitment to a client’s cause; and a duty of candour with the  
client relevant to the retainer. 1483677 Ontario Ltd. v. Crain, 2015 ONSC 6217,  
involved the evidence of an expert on the issue of lawyers’ conflict of interest. On  
the issue of the standard of care and its relationship to the Rules of Professional  
Conduct, Wilson J. wrote:  
155 The applicable standard of care is that of a reasonably competent solicitor:  
Ristimaki v. Cooper. A lawyer who is retained must bring "reasonable care, skill  
and knowledge to the performance of the professional service which he [or she] has  
undertaken." As well, "a solicitor's conduct must be viewed in the context of the  
surrounding circumstances. The reasonableness of the lawyer's impugned conduct  
is judged in light of the surrounding circumstances such as the time available to  
complete the work, the nature of the client's instructions, and the experience and  
sophistication of the client."  
…
161 I am guided by the comments of Justice Cromwell in Galambos v. Perez, 2009  
SCC 48, [2009] 3 S.C.R. 247, where he discussed the relationship between the Law  
Society of British Columbia's Professional Conduct Handbook (1993) and the law  
of solicitor's negligence.  
Page 84  
162 At para. 29, Cromwell J. stated the following:  
[...] there is an important distinction between the rules of professional  
conduct and the law of negligence. Breach of one does not necessarily  
involve breach of the other. Conduct may be negligent but not breach rules  
of professional conduct, and breaching the rules of professional conduct is  
not necessarily negligence. Codes of professional conduct, while they are  
important statements of public policy with respect to the conduct of lawyers,  
are designed to serve as a guide to lawyers and are typically enforced in  
disciplinary proceedings. They are of importance in determining the nature  
and extent of duties flowing from a professional relationship … They are  
not, however, binding on the courts and do not necessarily describe the  
applicable duty or standard of care in negligence …  
[284] While not prohibited, dual retainers in real estate matters have been the subject  
of discussion in many a case. The words of Laskin, C.J., for the majority, in  
McCauley v. McVey, [1980] 1 S.C.R. 165, at 168, are apt:  
... However simple and uncomplicated a real estate transaction may appear, it is the  
prudent course, if other solicitors are available in the area, for a solicitor to act in  
one interest only and thus avoid the embarrassment of possible later withdrawal, to  
the detriment of both parties for whom he had agreed to act.  
[285] In Davey v. Whoolley, Hames, Dale and Dingwall, (1982), 133 D.L.R. (3d)  
647, 1982 CarswellOnt 844, leave to appeal denied, 37 O.R. (2d) 499 (note), the  
Ontario Court of Appeal said the following about dual retainers:  
9
It was submitted by counsel for the defendants that it is not a hard and fast rule  
that solicitors cannot act on both sides of a transaction and, indeed, that it is not  
uncommon for solicitors, particularly in rural areas, to represent both vendor and  
purchaser on a real estate deal provided they make full disclosure and both parties  
consent to their acting. This may well be true although even in the case of a so-  
called “simple” real estate deal, I doubt that it is good practice. In any event the  
solicitor unquestionably assumes a dual role at his own risk, the onus being on him  
in any lawsuit that ensues to establish that the client “has had the best professional  
assistance which, if he had been engaged in a transaction with a third party, he could  
possibly have afforded”: see London Loan & Savings Co. of Canada v. Brickenden  
[1933], S.C.R. 257 at p. 262 (Crocket J. quoting from Lord O’Hagan in McPherson  
v. Watt (1877), 3 App. Cas. 254 at p. 266). Even on the simple real estate deal the  
consequences of conflict can manifest themselves in a failure to make the  
requisition that allegedly should have been made and would have been made if the  
solicitor had been motivated solely by a concern for the Plaintiff. On a transaction  
of the degree of complexity of the one before the Court on this appeal I think it is  
clear that the solicitor cannot act on both sides and all the more so when there is  
Page 85  
superadded to the divided loyalty owed to the two clients adverse in interest the  
personal financial interest of the solicitor’s senior partner.  
[286] In Davey v. Wooley, Wilson J.A. (as she then was) explained that the fiduciary  
duty to act in the client’s best interests also applies where the conflicting interests  
are between clients. She said:  
8 … A solicitor is in a fiduciary relationship to his client and must avoid situations  
where he has or potentially may develop a conflict of interests. This is not confined  
to situations where his client’s interests and his own are in conflict although it of  
course covers that situation. It also precludes him from acting for two clients  
adverse in interest unless, having been fully informed of the conflict and  
understanding its implications, they have agreed in advance to his doing so. The  
underlying premise in both these situations is that, human nature being what it is,  
the solicitor cannot give his exclusive, undivided attention to the interests of his  
client if he is torn between his client’s interests and his own or his client's interests  
and those of another client to whom he owes the self-same duty of loyalty,  
dedication and good faith. [Citation omitted.]  
[287] In my view, the following points can be distilled from the jurisprudence:  
The Code of Professional Conduct requires that before a lawyer acts in a  
matter or transaction for more than one client, the lawyer must advise each  
of the clients that:  
(a) the lawyer has been asked to act for both or all of them;  
(b) no information received in connection with the matter from one  
client can be treated as confidential so far as any of the others are  
concerned; and  
(c) if a conflict develops that cannot be resolved, the lawyer cannot  
continue to act for both or all of them and may have to withdraw  
completely.  
Consent in writing, or a record of the consent in a separate written  
communication to each client is required.  
A failure to comply with the Code of Professional Conduct is not  
necessarily a breach of the standard of care. Whether a lawyer has breached  
the standard of care requires consideration of the lawyer’s conduct as a  
whole.  
Page 86  
A professional negligence claim against a lawyer is typically accompanied  
by a claim of breach of fiduciary duty. The case law suggests that it can be  
difficult to separate the two concepts due to their interrelated nature.  
That said, the case law is clear that a lawyer is required to bring reasonable  
care, skill and knowledge to the performance of the services the lawyer  
undertakes to perform. The standard of care has been held to include  
advising the client on all matters relevant to the retainer, as is reasonably  
necessary; protecting the client’s interests; warning the client about any  
risks of the transaction; and drawing the client’s attention to, and  
explaining, unusual clauses in a document that might affect the client’s  
interests. In the joint retainer context, if the lawyer obtains material  
information from one client, the lawyer must share that information with  
each of the other clients. The lawyer must not favour one client over  
another.  
[288] I am troubled by the lack of expert evidence on the standard of care in these  
circumstances. I find the Plaintiff has failed to prove what the standard was at the  
time. There is no question that once Harding decided to act for both the Plaintiff and  
the Municipality, he was walking “the tight rope of fiduciary obligations” (Barrett  
v. Reynolds, 1998 NSCA 109, at para. 57). The prudent course, if other solicitors are  
in the area, would be to avoid a potential conflict and only act for one side of a real  
estate transaction: McCauley v. McVey. However, what did Harding do or not do  
in this matter that caused a loss? Having already found as fact that he did not give  
any environmental assurances, and indeed was never even asked for advice on  
environmental issues, what did his professional conduct or omissions cause with  
regards to damages? Does a standard exist requiring Harding to raise environmental  
issues in the face of a client who is experienced and is not seeking such advice? Yes,  
the APS is in several different fonts and is not the picture of perfect drafting – it is  
inelegant to be sure. In addition, the deposit was the purchase price. The latter is  
obviously unusual. However, none of this exhibits negligence which caused or  
contributed to the Plaintiff closing the deal and later facing remediation costs from  
contamination. Furthermore, Harding may not have explained to Anthony the email  
from the Municipality’s insurer and what was suggested should be in the contract.  
While this is not what is contemplated in a dual retainer, it had no bearing on  
Anthony’s decision to close the deal. Also, Harding probably should not have written  
to the Board after the fact in 2007 given the potential for a conflict but this is again  
not the issue before me. Despite these issues, the responsibility falls on Anthony.  
Page 87  
Anthony came to court trying to rewrite the contract, reinvent his solicitor-client  
relationship and alleviate his own responsibility.  
[289] Given the absence of expert evidence assisting me to determine the standard  
of care, I am not satisfied that the plaintiff has provided the basis necessary to make  
a finding on that element. I am not satisfied that this is a situation where the standard  
can be determined without expert evidence. In the event I am wrong, I will go on to  
consider causation.  
Causation  
[290] In Gilbert v. Marynowski, supra, Justice Stewart held that she could not find  
a breach of the standard of care by the Plaintiff’s counsel without expert evidence.  
Even if there was a breach, however, she said the following with respect to causation:  
53  
The requirement for a claimant to establish causation was summarized in  
Musgrave v. Ford, 2016 NSSC 157, [2016] N.S.J. No. 253 (N.S. S.C.), where  
LeBlanc J. said:  
38 Mr. Musgrave must show that he would not have sustained the damages  
in question but for the negligence of Mr. Ford. If he would have suffered  
the loss even if Ford had met the requisite standard of care, then the  
negligence did not cause the Mr. Musgrave's loss: see Rice v. Condran,  
2012 NSSC 95; BSA Investors Ltd v. Mosly, 2007 BCCA 94 at para 29.  
54  
A finding of breach of duty is a separate issue from causation. Causation  
cannot be assumed from a breach of duty. There must be proof that the breach of  
duty by the professional caused damage or loss to the client. A client who proves  
the existence of a duty, a beach of the standard of care, and damages will still be  
unsuccessful unless a causal link between the breach of the standard of care and the  
damages is established. In keeping with the traditional "but for" test for causation,  
the assertion of causation in this case rests on the assertion that the Marynowskis  
would have behaved differently — and specifically that they would not have  
entered into the APS — if only Ms. Malone had reviewed the terms and Mr. Cassidy  
had confirmed the financing condition. In that respect, Neilson J. (as she then was)  
commented in Newton v. Marzban, 2008 BCSC 328, [2008] B.C.J. No. 472 (B.C.  
S.C.), at para. 761:  
761 In considering that issue, I am mindful that I must resist the tendency  
to view the Plaintiff's decision to settle with "the acuity of vision given by  
hindsight": Karpenko v. Paroian, Courey, Cohen and Houston (1980), 117  
D.L.R. (3d) 383 at 398 (Ont. H.C.J.). I adopt the view of Groberman J. in  
Sports Pool Distributors Inc. v. Dangerfield, 2008 BCSC 9at para. 97, that  
in cases of professional negligence a bare assertion that a client would have  
behaved differently if he or she had received proper advice should be  
Page 88  
viewed with some scepticism. Like Mr. Justice Groberman, I endorse this  
observation of Southin J.A. in Hong Kong Bank of Canada v. Touche Ross  
& Co. (1989), 36 B.C.L.R. (2d) 381 at 392 (C.A.):  
It is always easy for a witness to say what he would have done and  
for a judge to say he accepts that assertion. But such evidence is, in  
truth, not evidence of a fact but evidence of opinion. It should be  
tested in the crucible of reason.  
[291] The fact is Anthony gave instructions to close the deal without seeking any  
advice in relation to the environmental condition of the Property from Harding. Why  
would he? Harding was not an environmental expert and Anthony had experience in  
this area. Nor had he or any of his companies ever requested such advice from  
Harding in the past. Should Harding have provided advice on this issue? Should a  
reasonably competent counsel provide advice in relation to environmental  
assessments generally and Phase 2 assessments in particular? As I have already  
held, I cannot assess that question without expert evidence. But I am, in any event,  
satisfied that the lack of such advice was not a cause of any damages to the Plaintiff,  
because I am not convinced that Anthony would have acted differently even if  
Harding had departed from tradition and offered advice on environmental issues.  
Anthony had made an agreement where he was content to take on this risk paying  
$25,000.00 for a million dollar property. As in Upper Valley Dodge Chrysler v.  
Cronier Estate (2005), 10 B.L.R. (4th) 201 (Ont. C.A.), this was a situation where  
the lawyer was retained to document a transaction the parties already agreed to and  
the plaintiff would have gone through with in any event.  
[292] However, despite that, it is prudent to review the following. While the parties  
have at various times referred to clause 9 of the APS as a “hold harmless” clause,  
this is not an accurate description of its language. As stated in Tri-County Regional  
School Board v. 3021386 Nova Scotia Ltd., 2021 NSCA 4:  
31 …The Board was the former occupier of the property but was not an owner. The  
property was owned by the Municipality. The Company and the Municipality  
executed the APS, which addressed the condition of the property in what the  
Company refers to as a "hold harmless" clause:  
9. The Vendor makes no representations about the condition of the property  
but agrees to obtain from the School Board and or their consultants an  
opinion as to the removal of tanks and the condition of the property being  
satisfactory to the purchaser.  
Page 89  
32  
In Seven Estate Ltd. v. Co-operators General Insurance Co. [1997  
CarswellBC 2652 (B.C. S.C.)], 1997 2372 the court refers to the following  
definition of a "hold harmless" clause:  
[73] A "save harmless" or "hold harmless" clause is defined in Black's Law  
Dictionary (St. Paul: West, 1990), as "a contractual arrangement whereby  
one party assumes the liability inherent in a situation, thereby relieving the  
other party of responsibility."  
33 This is not the effect of clause 9. Rather, it confirms the Municipality makes  
no representations with respect to the condition of the property but agrees to obtain  
from the Board or their consultants an opinion about the removal of oil tanks. It  
would be the Company's decision whether the opinion was satisfactory. That said,  
I will refer to clause 9 as the "hold harmless" clause as that is the term used  
throughout these proceedings to describe it.  
34 Pursuant to the terms of the APS, the Company agreed to purchase the property  
on the basis that the Municipality was not making any representations about the  
condition of the property, and without taking any steps to investigate the  
environmental condition of the property itself. The only obligation on the  
Municipality was to provide an "opinion" from the Board "and or" their consultants  
that was satisfactory to the Company. The Company received the AGAT  
Laboratories opinion anticipated by the "hold harmless" clause from the  
Municipality and was satisfied with it as it chose to proceed with the closing.  
35 The Company could have protected its interest through the APS by negotiating  
terms that would address any potential environmental or contamination concerns,  
or any other concerns with the condition of the property. Additionally, pursuant to  
the "hold harmless" clause it appears the Company could have requested further  
information from the Municipality if the opinions provided were not satisfactory.  
This is not a situation where the contract was silent on the matter at issue. The  
Company chose not to take either of the contractual "paths of protection" (Maple  
Leaf, supra, at para. 68) that were available to it.  
[293] The court further stated:  
39. It suggests there was "some understanding between the parties as to where  
risk would lie". Pursuant to Maple Leaf, supra, courts should be "careful not to  
disrupt the allocations of risk reflected, even if only implicitly, in relevant  
contractual arrangements" (para. 72).  
[294] There is a plethora of evidence that the Plaintiff accepted the risk when it bid  
and was successful in purchasing land “as is”, with “no environmental assurances”  
and then closing the transaction after receipt of soil analysis.  
Page 90  
[295] As Stewart J. did in relation to causation, in Gilbert v. Marynowski, I reject  
the evidence of Anthony on behalf of the company that if he had gone over the APS  
line by line he would have done something different. He had the benefit of clause 9  
and could have pursued one of two other courses of action. He could have either  
asked for more testing or information concerning the state of the Property, or he  
could have terminated the APS and walked away from the deal. He chose neither.  
He was content to rely on the soil testing done by AGAT and go forward with the  
purchase. He did so with no reliance on, or advice sought from Harding.  
[296] Rice v. Condran, 2012 NSSC 95, indicates that in order to be entitled to  
damages for the negligent legal advice, an aggrieved plaintiff must demonstrate a  
causal connection between the breach of the standard of care and the resultant action  
or inaction of the client.  
[297] In MacCulloch v. McInnes Cooper & Robertson, 2001 NSCA 8, Bateman J.A.  
discussed this element in detail. She said for the court:  
59 Sykes v. Midland Bank Executor & Trustee Co., [1970] 2 All E.R. 471 (Eng.  
C.A.) , referred to by Granger, J. in Sorkos, is commonly cited for the proposition  
that, where negligent advice has been given by a solicitor, the clients who suffered  
damage must prove that had proper advice been given, they would not have entered  
into the transaction or would have entered it on different terms…  
…
64  
Causation, particularly in cases of negligence through advice not given, is  
primarily a question of inference by the trial judge as was recognized in Allied  
Maples Group v. Simmons & Simmons, [1995] 4 All E.R. 907 (Eng. C.A.). There  
Allied Maples acquired assets of the Gillow Group. They complained that in the  
course of the acquisition the defendant solicitors had insufficiently advised them as  
to the "first tenant liabilities" that might and did eventuate from leases originally  
held by the Gillow company. The judge held that Allied Maple must prove on  
balance of probability that, had it received proper advice, it would have taken steps  
to negotiate with Gillow to obtain protection. There was ample evidence to support  
the judge's findings on this. The Law Lords agreed that where the complaint is one  
of advice not given, the hypothetical question of what the Plaintiff would have done  
requires that the judge draw an inference. While such inferences are not as insulated  
from review by appellate courts as are findings of primary fact, deference is  
nonetheless due given the advantage enjoyed by the trial judge.  
65 Stuart-Smith, L.J. said at pages 914 - 915:  
1. What has to be proved to establish a causal link between the negligence  
of the defendants and the loss sustained by the Plaintiffs depends in the first  
instance on whether the negligence consists on some positive act or  
Page 91  
misfeasance, or an omission or non-feasance. In the former case, the  
question of causation is one of historical fact. ...  
2. If the defendant's negligence consists of an omission, for example to  
provide proper equipment, or to give proper instructions or advice,  
causation depends, not upon a question of historical fact, but on the answer  
to the hypothetical question, what would the Plaintiff have done if the  
equipment had been provided or the instruction or advice given. This can  
only be a matter of inference to be determined from all the circumstances.  
The Plaintiff's own evidence that he would have acted to obtain the benefit  
or avoid the risk, while important, may not be believed by the judge,  
especially if there is compelling evidence that he would not. In the ordinary  
way, where the action required of the Plaintiff is clearly for his benefit, the  
court has little difficulty in concluding that he would have taken it...  
Although the question is a hypothetical one, it is well established that the  
Plaintiff must prove on balance of probability that he would have taken  
action to obtain the benefit or avoid the risk. But again, if he does establish  
that, there is no discount because the balance is only just tipped in his  
favour. In the present case the Plaintiffs had to prove that, if they had been  
given the right advice, they would have sought to negotiate with Gillow to  
obtain protection. The judge held that they would have done so. I accept Mr  
Jackson's submission that since this is a matter of inference, this court will  
more readily interfere with a trial judge's findings than if it was one of  
primary fact. But even so, this finding depends to a considerable extent on  
the judge's assessment of Mr Harker and Mr Moore, both of whom he saw  
and heard give evidence for a considerable time. Moreover, in my judgment  
there was ample evidence to support the judge's conclusion. Mr Jackson's  
attack on this finding was, as I have explained, something of an afterthought  
and not, I think, undertaken with great enthusiasm. I am quite unable to  
accede to it.  
[298] In order to prove causation, the Plaintiff must demonstrate that but for  
Harding’s alleged negligence it would have acted differently and thus avoided the  
loss it is alleged to have suffered. From the evidence, I conclude that causation  
cannot be found when one considers the following:  
(a) There was no evidence of past transactions wherein Harding provided  
advice to Anthony, the Plaintiff, or any other entity affiliated with Anthony  
with respect to environmental due diligence. Harding was not consulted by  
Anthony or the Plaintiff for advice or with respect to the content of the  
proposals submitted in reply to the February and October RFPs.  
(b) Anthony’s proposals in response to the October RFP specifically  
disclaimed a request for a “Phase I” environmental site assessment.  
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(c) Anthony knew (or reasonably ought to have known) of the risk of  
environmental contamination on the Property based on his possession of the  
Jacques Whitford Phase I Environmental Site Assessment prepared in 2000  
with respect to 3723 and 3737 Highway No. 3. He alone had this information.  
(d) Without the need for any advice or warning from Harding, Anthony  
understood the nature, purpose and reasons for requesting a Phase I and Phase  
II environmental site assessment with respect to a property.  
(e) Anthony was aware that, at all times material hereto, there was no  
obstacle preventing him from retaining an environmental expert on behalf of  
the Plaintiff to review the environmental reporting or to conduct  
environmental site assessments with respect to the Property.  
(f) Anthony agreed that the agreement of purchase of sale entitled the  
Plaintiff to refuse to close the transaction if it was not satisfied with the  
condition of the Property or the soil anaylsis.  
(g) All communications concerning the condition of the Property, inclusive  
of environmental testing, were exchanged directly by Anthony, on behalf of  
the Plaintiff, and Holland, on behalf of the Municipality. With limited  
exceptions, Harding was not copied on the aforementioned correspondence.  
Harding was not consulted by, and did not provide advice to the Plaintiff or  
the Municipality concerning these issues.  
(h) On January 22, 2007 (the original closing date), Anthony informed the  
Municipality that he was not satisfied with the information provided  
concerning the environmental condition of the Property. The closing date was  
extended by agreement. Harding was not consulted by, and did not provide  
advice to the Plaintiff or the Municipality concerning these issues.  
(i)  
Anthony was solely responsible for reviewing the environmental  
reporting received from the Municipality, and he did in fact review the  
environmental reporting received, communicated his satisfaction with same,  
and instructed Harding to close the transaction.  
[299] Anthony understood the nature and purpose of environmental site  
assessments, inclusive of Phase II site assessments. He had experience with  
assessments prepared for other properties, and could have obtained such an  
assessment or other professional assistance if he so decided. Anthony, on behalf the  
Plaintiff, elected not to proceed in this manner.  
Page 93  
[300] It is equally undisputed that Anthony was solely responsible for reviewing the  
environmental reporting received concerning the Property. This was wholly  
consistent with the remainder of the transaction - Anthony equally did not seek  
Harding’s advice concerning the content of the Plaintiff’s proposals to the  
Municipality.  
[301] For these reasons, I conclude that the plaintiff has not established the element  
of causation.  
Damages  
[302] The Plaintiff also advanced this claim without any expert evidence concerning  
the extent of alleged contamination or of the cost of remediation.  
[303] The Plaintiff called evidence from Russell Finley (Finley), a civil engineer  
who works as a hydro-geologist, with 35 years of experience working with  
contaminated sites. Finley testified that Anthony sought a Phase I assessment of the  
Property, which he completed after the closing of the APS. Finley oversaw the  
identification of potential environmental concerns and the need for additional work,  
preparing several reports, although he was not advanced as an expert witness. I  
rendered an earlier decision in relation to these reports (2021 NSSC 155) concluding  
that much of his intended evidence constituted inadmissible opinion evidence.  
[304] In fact, the evidence was that not all of the remediation has been completed,  
with the Plaintiff deciding to await the results of the litigation. The Plaintiff argues  
that I can decide liability and then have the parties return to the issue of damages at  
another time, although the Plaintiff did not seek to bifurcate its claim. The Plaintiff  
relies on Doucet-Boudreau v. Nova Scotia (Department of Education, 2003 SCC 62,  
where LeBlanc J. had retained jurisdiction to receive ongoing reports as to the  
provincial government’s progress in building school facilities mandated by Charter  
language rights. These ongoing reports were rooted in the application of s. 24 of the  
Charter. This is not the case before me.  
[305] There is no evidence before the court as to the quantity of soil contamination  
or the cost to remediate what may exist on the site. This is simply an area without  
evidence. I also do not have any information on what effect on the market value of  
the Property this alleged contamination may have. There is a dearth of evidence on  
a plethora of issues.  
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[306] There is no basis to conclude that the Plaintiff has suffered a loss or that its  
claim should be quantified on the basis of remediation costs allegedly incurred. The  
Plaintiff has produced no expert report quantifying its loss or even supporting the  
environmental remediation conducted on the Property on that basis alone.  
[307] In 340268 v. Rohcan, 2017 ONSC 6676, the court declared itself seized to  
obtain additional information. The issue was what level of remediation should be  
performed, who was required to perform it, and to what level. The court directed  
the parties to obtain and present additional information before a final decision was  
made. This case is distinguishable, given the nature of the agreement between the  
parties and the declarations requested by both parties. Rochan was premised on  
contractual interpretation and obligations, not a negligence action.  
[308] The general rule is that all issues should be tried together unless it is just and  
convenient to try them separately, considering the interests of the parties and the  
proper administration of justice. No severance motion was ever advanced by the  
Plaintiff. The defendant appropriately proceeded on the basis that all issues would  
be dealt with at once.  
[309] Given the lack of evidence, even were other elements established, I am unable  
to make any finding as to the scope of the alleged damages suffered by the laintiff.  
Conclusion  
[310] The Honourable Justice Muise presided over a proceeding wherein 3021386  
Nova Scotia Ltd., the Plaintiff before me, brought a claim from an implied grant of  
easement to the numbered company to draw water from the soccer field well  
(3021386 Nova Scotia Ltd. v. Barrington (Municipality), 2014 NSSC 1). This was  
in relation to lands adjacent to the Property. The water being drawn into the old  
Senior High School was being drawn from a well by the soccer field, not the  
courtyard well as believed. In the process of deciding the numbered company had  
failed to establish the implied easement, Justice Muise stated at para. 88:  
My conclusion regarding unfairness to the Municipality is further supported by the  
fact that, during the request for proposals process, Mr. Anthony, initially on behalf  
of Anthony Properties Ltd., and ultimately on behalf of the Applicant Numbered  
Company, indicated that he did not need an environmental assessment prior to  
closing and was prepared to assume the environmental risks associated with the  
property.  
Page 95  
[311] No party before me raised estoppel or otherwise suggested that this issue had  
been previously decided. Yet it bears mention that in an earlier proceeding this was  
stated. After weeks of evidence, I have found that Anthony – on behalf of the  
Plaintiff assumed these risks and I so conclude based on the viva voce evidence of  
the parties and other witnesses and based on the raft of documents placed before me.  
[312] The claim against the remaining defendant, Harding, is rooted in an alleged  
breach of the standard of care of a reasonable and prudent solicitor, in his alleged  
failure to advise the Plaintiff to seek a Phase II environmental assessment, failure to  
advise of the impact of the “hold harmless” clause in the APS, and a breach of the  
dual retainer regarding the removal of the oil tanks and assurances as to the  
environmental standards. Furthermore, the Plaintiff alleges the defendant breached  
the dual retainer when he had discussions with the Municipality about the inclusion  
of the “hold harmless” clause in the APS and failed to share those discussions with  
the Plaintiff.  
[313] I do not accept Anthony’s version of events. I reject any suggestions he has  
made that he relied on Harding in relation to the environmental condition of the  
Property or that Harding made any representations at all on that subject. He did not.  
Where the evidence of Anthony conflicts with the evidence of Harding, I accept that  
of Harding. The “as is” transaction is antithetical to Anthony’s subsequent  
suggestions that he was seeking and given environmental assurances.  
[314] This is a tale of Anthony’s gamble to purchase a significant property at a  
significantly reduced cost. The colloquial phrase: he rolled the dice and came up  
snake eyes, comes to mind. However, despite any remediation cost, Anthony still  
got what he was looking for. A steal of a deal. Maybe not the steal he was hoping  
for, but still a million dollar plus property for $25,000.01.  
[315] Simply put, Anthony was the author of any Plaintiff’s misfortune. Not  
Harding. The claim is dismissed.  
[316] If the parties are unable to agree on costs, they may provide written  
submissions within one month of the date of release of this decision.  
Brothers, J.  


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