Bank of Nova Scotia v. Guenette, (1986) 75 A.R. 361 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 22, 1986
• Citations: (1986), 75 A.R. 361 (QBM)

BNS v. Guenette (1986), 75 A.R. 361 (QBM)

MLB headnote and full text

Bank of Nova Scotia v. Hector Guenette and Lucille Guenette

(No. 8603 18066)

Indexed As: Bank of Nova Scotia v. Guenette

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

December 22, 1986.

Summary:

The defendant husband and wife entered a Scotiabank Credit Agreement with the plaintiff bank whereby they would jointly receive a $20,000.00 line of credit. The bank opened the account in only the husband's name and he was loaned $20,000.00. The bank brought an action against both for the balance owing.

The Alberta Court of Queen's Bench in a judgment reported 68 A.R. 268 dismissed the action, because the account was opened in the husband's name only contrary to the agreement, with a resulting failure of consideration.

The bank brought another action against the husband and wife on the same agreement. The defendant applied to strike out the statement of claim on the ground of res judicata.

A Master of the Alberta Court of Queen's Bench allowed the application in part and struck out that part of the claim relying on the agreement already litigated.

Estoppel - Topic 379

Estoppel by record - Res judicata as bar to subsequent proceedings - General principles - Cause of action - After a bank's action against debtors on a loan agreement was dismissed, the bank brought another action against the debtors on the same agreement - A Master of the Alberta Court of Queen's Bench struck out the statement of claim on the ground of res judicata - The master stated that in determining whether a cause of action is res judicata, the allegations of fact in the statement of claim and not the relief claimed or remedies sought were relevant - See paragraphs 36 to 40, 54, 77 - The master generally discussed the doctrine of res judicata.

Cases Noticed:

Toronto General Trusts v. Hogg, [1932] 4 D.L.R. 465 (Ont. C.A.), refd to. [para. 5].

Century 21 Real Estate v. Reykdal Investments, 9 Alta. L.R.(2d) 209 (Q.B.), refd to. [para. 11].

Henderson v. Henderson, 67 E.R. 313, consd. [para. 13].

Hall v. Hall (1958), 15 D.L.R.(2d) 638 (Alta. C.A.), consd. [para. 13].

Doering v. Town of Grandview, [1976] 2 S.C.R. 621; 7 N.R. 299, consd. [para. 13].

Morgan Power Apparatus v. Landers Installation, 27 D.L.R.(3d) 249 (B.C.C.A.), consd. [para. 13].

Melcore Developments v. City of Edmonton (1982), 37 A.R. 532; 20 Alta. L.R.(2d) 179 (Q.B.), dist. [paras. 13, 41].

Bank of Nova Scotia v. Cheng (1982), 33 Nfld. & P.E.I.R. 89; 93 A.P.R. 89 (Nfld. S.C.), dist. [paras. 13, 58].

Sarnelli v. Fraietta (1981), 28 A.R. 482 (Q.B. Master), appld. [para. 36].

Wager v. Little, [1924] 1 W.W.R. 112 (Alta. C.A.), appld. [para. 39].

Hoover v. Burrows, [1945] 3 W.W.R. 683 (Alta. C.A.), appld. [para. 39].

Statutes Noticed:

Rules of Court (Alta.), rule 32 [para. 22].

Authors and Works Noticed:

Spencer-Bower and Turner, Res Judicata (2nd Ed.), p. 146 [para. 56].

Counsel:

J. Miller (Duncan & Craig), for the plaintiff;

W.S. Andrew (Andrew, Donahoe & Oake), for the defendants.

This case was heard at Edmonton, Alberta, before Master Funduk of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 22, 1986: