Ashby v. McDougall Estate et al., (2005) 234 N.S.R.(2d) 162 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 18, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 234 N.S.R.(2d) 162 (SC);2005 NSSC 148

Ashby v. McDougall Estate (2005), 234 N.S.R.(2d) 162 (SC);

    745 A.P.R. 162

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JN.033

Nancy Elizabeth Ashby (plaintiff) v. The Estate of Donald Corbett McDougall and Co-Executors Trustees for Canada Trust Company, a body corporate, and Arleen Fagan and McDougall's Drug Store Ltd., now 1013874 Nova Scotia Limited and Directors Michael H. Whynot and Arleen Fagan and Michael H. Whynot and Arleen Fagan (defendants)

(S.K. 241019; 2005 NSSC 148)

Indexed As: Ashby v. McDougall Estate et al.

Nova Scotia Supreme Court

Warner, J.

June 16, 2005.

Summary:

The plaintiff was a pharmacist's bookkeeper for the 28 years preceding his 1999 death. The plaintiff was not a shareholder in the pharmacy business, but had signing authority for banking purposes and performed management tasks from 1999 until the pharmacy was subsequently sold. A clause in the pharmacist's will provided that any person who co-owned any property with him in their joint names became the sole beneficial owner of such property upon his death by right of survivorship. The self-represented plaintiff claimed that she was "joint" with the pharmacist and became the owner of the pharmacy and a portion of a large GIC upon his death. Two prior claims were struck under rule 14.25 as failing to disclose a reasonable cause of action. The present claim, although similar, pleaded different facts and dropped some claims (wrongful dismissal, etc.). The defendants (pharmacist's estate et al.) submitted that res judicata or issue estoppel precluded the present claims, which had already been decided against the plaintiff. The defendants applied under rule 14.25 to strike the statement of claim as failing to disclose a reasonable cause of action and, alternatively, for summary judgment dismissing the claim as raising no triable issues. Further, the defendants sought an injunction to preclude any future claims.

The Nova Scotia Supreme Court held that (1) res judicata and issue estoppel did not apply because the prior proceedings were struck without any determination of the merits of the claims; (2) a portion of the statement of claim was struck under rule 14.25; (3) summary judgment was granted dismissing the entire claim; (4) the drastic remedy of injunctive relief precluding any future claim was denied; and (5) the defendants were awarded solicitor and client costs.

Actions - Topic 2607

Duplicitous or vexatious actions - Prohibition order - The plaintiff brought an action against an estate for ownership of certain property under a clause in the will - Two previous statements of claim were struck under rule 14.25 for failing to disclose a reasonable cause of action on the facts pleaded - Summary judgment was granted to dismiss the third action - The defendants sought an order enjoining the plaintiff from commencing any further action - The Nova Scotia Supreme Court declined to grant the order, notwithstanding the court had the inherent jurisdiction to control its own process and prevent the abuse of that process - Such a prohibition was a "drastic remedy" where future information might become available that would enable the plaintiff to lodge a reasonable cause of action - See paragraphs 79 to 89.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The plaintiff brought an action against an estate for ownership of certain property under a clause in the will - Two previous statements of claim were struck under rule 14.25 for failing to disclose a reasonable cause of action on the facts pleaded - The defendants claimed that res judicata or issue estoppel precluded the present action - The Nova Scotia Supreme Court held that res judicata or issue estoppel did not apply - Although the prior decisions were final and involved the same parties, the plaintiff's claims had never been determined on the merits - The prior proceedings were struck for failing to disclose a cause of action on the facts pleaded - The present action pleaded different facts - The court stated that "[the prior judges'] determination was made (as is required by law) solely on the pleadings and without reference to any extrinsic evidence such as contained in affidavits or oral evidence. Neither made any factual determinations. The issues raised by the plaintiff in this action have never been determined on their merits, either by way of a determination under rule 13.01 for summary judgment or after a trial" - See paragraphs 14 to 27.

Personal Property - Topic 1621

Ownership - Joint tenancy - General - The plaintiff was a pharmacist's bookkeeper for the 28 years preceding his 1999 death - The plaintiff was not a shareholder in the pharmacy business, but had signing authority for banking purposes and performed management tasks from 1999 until the pharmacy was subsequently sold - A clause in the pharmacist's will provided that any person who co-owned any property with him in their joint names became the sole beneficial owner of such property upon his death by right of survivorship - The self-represented plaintiff claimed that she was "joint" with the pharmacist and became the owner of the pharmacy and a portion of a large GIC upon his death - The Nova Scotia Supreme Court granted summary judgment dismissing the claim as raising no triable issues - There was no basis for finding the plaintiff a "co-owner" of any of the pharmacist's or pharmacy's property, including shares, assets or GIC's - The self-represented plaintiff had no understanding of basic company law - See paragraphs 40 to 78.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - The Nova Scotia Supreme Court awarded solicitor and client costs against a plaintiff who obsessively pursued and recycled the same matter a third time, without any new information or significant change in the pleadings, as such conduct was vexatious and a clear abuse of the court's process - See paragraphs 90 to 96.

Cases Noticed:

Hoque v. Montreal Trust Co. et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321 (C.A.), refd to. [para. 14].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 15].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 17].

Copage et al. v. Annapolis Valley Indian Band (2004), 228 N.S.R.(2d) 284; 723 A.P.R. 284; 2004 NSCA 147, refd to. [para. 18].

Connolly v. Canada Post Corp. et al. (2005), 232 N.S.R.(2d) 5; 737 A.P.R. 5; 2005 NSCA 55, refd to. [para. 18].

Carey Canada Inc. et al. v. Hunt et al. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 28].

Vladi Private Islands Ltd. v. Haase et al. (1990), 96 N.S.R.(2d) 323; 253 A.P.R. 323 (C.A.), refd to. [para. 29].

Tupper v. Wheeler et al., [2005] N.S.R.(2d) Uned. 47; 2005 NSCA 74, refd to. [para. 29].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 38].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 40].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 40].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 41].

Selig v. Cook's Oil Co. et al. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 42].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 43].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 81].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 81].

MacCulloch (Bankrupt), Re (1993), 123 N.S.R.(2d) 351; 340 A.P.R. 351 (C.A.), refd to. [para. 81].

Halifax (Regional Municipality) v. Ofume (2003), 218 N.S.R.(2d) 234; 687 A.P.R. 234; 2003 NSCA 110, refd to. [para. 82].

Orpen v. Ontario (Attorney General), [1925] 2 D.L.R. 366 (Ont. S.C.), refd to. [para. 82].

Grepe v. Loam (1887), 37 Ch. D. 168 (C.A.), refd to. [para. 84].

Woods v. Racine (1984), 28 Man.R.(2d) 161 (Q.B.), refd to. [para. 84].

Shaward v. Shaward, [1988] 3 W.W.R. 319; 51 Man.R.(2d) 222 (C.A.), refd to. [para. 84].

Dieppe (Town) et al. v. Charlebois et al. (1995), 163 N.B.R.(2d) 394; 419 A.P.R. 394 (T.D.), refd to. [para. 84].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 93].

Lienaux et al. v. Toronto-Dominion Bank (1997), 159 N.S.R.(2d) 305; 468 A.P.R. 305 (C.A.), refd to. [para. 93].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.) (2003 Looseleaf Supp.), § 204 [para. 90].

Sharpe, Robert J., and Cromwell, Thomas A., Injunctions and Specific Performance (Looseleaf Ed.), § 5.410 [para. 80].

Counsel:

Plaintiff/respondent, unrepresented;

Peter Bryson, Q.C., for the defendants/applicants.

This application was heard on May 18, 2005, at Windsor, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 16, 2005.