The Nova Scotia Court of Appeal has delivered a clear reminder that an appeal is not an opportunity to re-argue a case or introduce new legal theories not advanced at trial. In Can*Sport Incorporated v. HarbourEdge Mortgage Investment Corporation, 2026 NSCA 2 (CanLII) the Court dismissed an appeal grounded in 25 separate and largely ill-defined allegations of error, many of which had not been pled or raised at trial. Finding no reviewable error in the trial judge’s dismissal of the borrower’s claim for breach of contract and bad faith—or in the elevated costs award that followed—the Court upheld the decision in full and imposed an additional $50,000 in costs on appeal.
The decision underscores both the deference owed to trial judges and the tangible risks of overreaching appellate advocacy.
Summary of Case
The Appellant Can*Sport Incorporated entered into a lending agreement with the Respondent, HarbourEdge Mortgage Investment Corporation, to construct a multi-complex sport facility. The Respondent advanced funds which allowed the Appellants to purchase the property and complete certain site works.
There were significant delays and cost overruns, and a lien was placed on the property by one of the Appellants’ subcontractors. The Respondent exercised its rights under the lending agreement not to advance additional funds and claimed against the Appellants for the amount outstanding on the loan. The Appellants counterclaimed. Can*Sport was placed into receivership. The Respondent’s claim against the Appellants was therefore stayed.
The Appellants’ counterclaim proceeded to trial and was dismissed. The trial judge ordered $200,000 in costs, exercising her discretion to increase the award slightly above the tariff amount due to the Appellants’ “meritless claims of bad faith”.
The Appellants appealed the trial judge’s decision on 25 separate grounds, claiming that the trial judge erred in her dismissal of the claim as well as her award on costs. The Respondent’s position was that the Appellants were essentially seeking a re-hearing of the trial.
Before the Court of Appeal, the Appellants primarily made submissions on only four grounds, claiming that the trial judge failed to apply certain legal doctrines that the Appellants argued were applicable. The Respondent argued that the Appellants had not raised any of these doctrines in their pleadings or at trial, and it would have therefore been an error for the trial judge to consider them.
The Court of Appeal agreed, and the appeal was dismissed. The Court of Appeal awarded $50,000 in costs, finding that the Appellants advanced numerous, ill-defined grounds of appeal that lacked merit, and that the Respondent had to respond to several new arguments on appeal not previously put before the judge.
Note from our Communications Chair
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View the list of all 2026 Nova Scotia Court of Appeal Cases.