St. John’s condo sellers keep appeal alive despite filing defects

Two sellers found liable for negligent misrepresentation over condominium units in a historic St. John’s property have preserved their opportunity to appeal, despite delays and problems with their court filings.

In Nolan v. O’Connor, 2026 NLCA 27, decided July 24, 2026, the Court of Appeal of Newfoundland and Labrador dismissed applications to end Kevin Nolan and Robert Hall’s appeal before a hearing on its merits.

The decision did not overturn the trial judgment or decide that the sellers’ arguments were correct. It found that shutting down the appeal at this preliminary stage would be disproportionate, while setting limits on the issues and evidence that could be considered.

Condominium sales led to a misrepresentation judgment

The dispute arose from the conversion of a historic property into eight units marketed as The Merchant’s House condominium development. Purchasers later learned that the City of St. John’s had permitted a bed-and-breakfast or lodging-house operation, rather than the self-contained residential use they understood they were acquiring.

According to the trial background reproduced in the appeal reasons, the city directed that operations cease and that units on the second and third floors be vacated. The purchasers sued in 2014.

Following a seven-day trial, the judge found Nolan and Hall liable for negligent misrepresentation and awarded damages in 2024 NLSC 5. That cause of action requires a duty of care, an inaccurate or misleading representation made negligently, reasonable reliance and resulting loss.

Nolan and Hall appealed. The purchasers asked the appeal court to strike the notice of appeal or dismiss the appeal, arguing that it lacked merit, had been unduly delayed and was supported by seriously defective materials.

An arguable appeal is not a successful appeal

The court explained that the threshold for keeping a potentially arguable appeal alive is low. At this stage, the question is not whether the appellants are likely to win, but whether it is plain and obvious that their grounds cannot succeed.

The sellers challenged aspects of the trial judge’s application of the negligent-misrepresentation test, including the findings about representations and reliance. They also raised issues concerning contractual terms, disclaimers and the purchasers’ due diligence.

After examining the notice of appeal and the record, the court was not satisfied that the appeal was devoid of an arguable case or was frivolous or vexatious. Those conclusions left the substantive dispute for the appeal hearing; they did not resolve it in the sellers’ favour.

Defective filings could be managed without dismissal

The court acknowledged significant delay and non-compliance with procedural rules. The notice of appeal was filed on May 8, 2024, but was not served on the purchasers until April 2025. It nevertheless assessed those problems in the context of a relatively complex case involving numerous witnesses, expert evidence and self-represented appellants who had taken steps to advance their appeal.

Self-represented litigants must still follow the rules, the court emphasized. But a failure to comply does not automatically justify ending an appeal. Here, the delay was not excessive or disproportionate in the circumstances to the degree necessary for dismissal.

The purchasers also objected to documents that had not formed part of the trial evidence. The court addressed that concern by directing that the appeal be confined to the trial record unless the appellants successfully brought a separate application to admit additional evidence.

Similarly, the lack of a complete trial transcript did not require dismissal. The rules call for the portions necessary to decide the appeal, and respondents can supplement an appellant’s excerpts. The court cautioned that an appellant alleging an error may struggle to establish it without the relevant transcript.

To clarify the scope of the appeal, the court permitted the issues in the notice of appeal and four additional issues identified through revised written arguments: the buyer-beware principle, alleged misunderstanding or selective use of evidence, procedural fairness at trial and appraisal evidence. No further additional issues were permitted.

Both preliminary applications were dismissed. The appeal was allowed to proceed in the normal course, with the applications’ costs left to follow the outcome of the appeal. The July ruling made no new damages award and did not decide the merits of the trial judgment under challenge.