GANDER, NL — A Gander couple has the green light from Supreme Court Judge Kendra J. Goulding to take their case against the Town of Gander to Supreme Court.
Arthur and Bernice Melendy’s legal action against the town over construction of a cul-de-sac on Peterson Drive began in provincial court, but they later filed a statement of claim in Supreme Court in October 2017.
The town argued that statement of claim should be set aside on the grounds that a file dealing with the same issues and involving the same parties had already been heard in provincial court.
The municipality further argued the Melendys, represented in court by Jeremy D. Loeb, had the option to file a counterclaim in provincial court seeking the same relief.
The town’s application was heard in Supreme Court on Dec. 15, 2017.
Goulding handed down her ruling on the matter on Monday, Jan. 22.
In her summation of the facts, Goulding outlined the sequence of events that led to the legal challenges.
The plaintiffs own property located at 4 Peterson Drive in Gander. The statement of claim filed in the Supreme Court on Oct. 12, 2017 alleges a town employee wrote the Melendys in March 2016, advising the family of the town’s intentions to develop a new cul-de-sac at the end of Peterson Drive. They were originally told construction would encroach on their property, but several months later, the Melendys say they were informed that no expropriation of the property would be necessary.
The background states the town set about developing the cul-de-sac on Aug. 11, 2016 without informing the Melendys that work was imminent.
The following day, the family was asked to move its motor vehicles and recreational vehicles to another location, so equipment could access the property. The Melendys claim they were not informed about access to their property prior to the Aug. 12 incident.
According to the background, six days later another altercation about removal of the vehicles occurred, with the defendant advising the Melendys’ son that failure to do so would result in him being arrested and charged with a criminal offence.
On March 17, 2017, the Melendys received an invoice from the town for $1,716.67, described as “interference cost.”
Seeking payment, the town filed a statement of claim in provincial court on Oct. 4.
The Melendys argued that their claim against the town includes aggravated and punitive damages, in excess of $25,000, as well as the cost of their legal fees, which makes it a legal matter outside the jurisdiction of the provincial court.
Judge Goulding agreed.
She concluded, “The nature of the proceeding commenced … in the provincial court has changed in complexion and character.
“The plaintiff’s claim is outside the jurisdiction of the provincial court as the plaintiffs (Melendys) are not prepared to abandon the excess nor their request for solicitor and client costs.
“I fail to see any prejudice to the defendant (Town of Gander) should this matter be heard entirely by the Supreme Court."
Goudling dismissed the Town of Gander’s application to have the case set aside, and granted the Melendys’ request to have the case heard in Supreme Court.
“This will avoid a multiplicity of proceedings and the possibility of inconsistent verdicts,” she ruled.
Goudling also ordered the Town of Gander pay the Melendys’ legal costs related to the Dec. 15 Supreme Court hearing.
The next date for the case to next be heard in court had not been set as of press time.