Canada Deposit Insurance Corp. et al. v. Prisco et al., (1997) 204 A.R. 311 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 20, 1997
• Citations: (1997), 204 A.R. 311 (QB)

CDIC v. Prisco (1997), 204 A.R. 311 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. AP.031

Northland Bank and Deloitte & Touche Inc., as Liquidator of Northland Bank (plaintiffs) v. Robert A. Willson, William E. Neapole, Harold G. Green, Stephen J. Adams, Martin G. Fortier, Roland P. Guenette, George J. Bestianich, Eric R. Hayne, James A. Kellington, David Naylor, James I.M. Ross, William H. Simmons, H.B. McBain, Glen. A. Simpson, Ronald G. Scott, Harold Walker and Wieland Wettstein et al. (defend­ants) and Marc Lalonde et al. (third parties)

(Action No. 8701-14280)

Canada Deposit Insurance Corporation and Her Majesty The Queen In Right of Canada, as represented by Minister of Finance (plaintiffs) v. Sidney M. Oland, Walter A. Prisco, David R. Watson, Robert A. Willson, William E. Neapole, Harold G. Green, Stephen J. Adams, Martin G. Fortier, Roland P. Guenette, George J. Bestianich, Eric R. Hayne, James A. Kellington, David Naylor, James I.M. Ross, William H. Simmons, H.B. McBain, Glen A. Simpson, Ronald G. Scott, Harold Walker and Wieland Wettstein et al. (de­fendants) and Karl Adamsons, Andre Brossard, Joseph W. Courtright, A.F. D'Entremont, Neville Grant, William A. Kennett and Donald M. MacPherson, Marc Lalonde, Michael Wilson, Barbara J. McDougall and Elizabeth Roscoe, Gerald Bouey and Bank of Canada, Northland Bank, Clarkson Gordon, Touche Ross & Co., Thorne Riddell, Deloitte Haskins & Sells, Deloitte & Touche Inc., Ernst & Young, Peat Marwick Thorne, William K. Detlefsen, Roderick J. McKay, Allan N. Tamaki, J. Crawford Smith, H. Graham Lebourveau, Michael MacKenzie, Ronald M. Elliot, Kenneth G. Eades, Giles Meikle, John Giesbrecht, Douglas Baker, James Peers, Donald S. Heasman, John deBruyn and Walter A. Prisco et al. (third parties)

(Action No. 9401-10435)

Indexed As: Canada Deposit Insurance Corp. et al. v. Prisco et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Moore, C.J.Q.B.

March 20, 1997.

Summary:

The Northland Bank collapsed. On Sep­tember 1, 1985, a curator was appointed to look after the bank's affairs. A Commission of Inquiry examined the collapse in detail. Its report was made public on August 26, 1986. The Canada Deposit Insurance Corp. (CDIC) and Canada itself became liable to creditors and depositors for huge sums. In 1987, they sued the former direc­tors of Northland, among others, in negli­gence and for other relief. The liquidator (Deloitte & Touche Inc.) commenced a similar action. The actions were not consolidated. In 1992 and 1993, the directors and other defendants filed third party notices against the Bank of Canada and others in both the CDIC action and the liquidator's action. Subsequently, some of the third parties and the plaintiffs in the CDIC action applied under rule 159 to strike the third party notices of the defendant Oland (a former director of Northland) on the ground that the causes of actions described in the third party notices were barred by the provi­sions of the Limitation of Actions Act because they were filed after September 1, 1991. Notice of the application was given to all defendants.

The Alberta Court of Queen's Bench, in a decision reported at 170 N.R. 388, allowed the application under rule 159 and directed that the third party proceedings be dismissed. The defendant Oland appealed.

The Alberta Court of Appeal, in a decision reported 181 A.R. 161; 116 W.A.C. 161, dismissed the appeal. On the basis of that decision, the third parties and plaintiffs in the CDIC action applied to have the third party notices issued by the other defendants struck out on the grounds of the expiry of the limitation period as well as res judicata. The third parties also applied for the same relief in regard to the third party notices issued in the liquidator's action. The defend­ants opposed the application on the ground, inter alia, that the parties were not the same as were involved in the Oland application.

The Alberta Court of Queen's Bench held that the limitation period commenced when the Commission of Inquiry issued its report (August 27, 1986). The court allowed the applications in part and struck the third party notices issued after August 27, 1992 in both actions. Subsequently, the court released the following addendum.

Limitation of Actions - Topic 3090

Actions in tort - Contribution between tortfeasors - Claim to contribution by way of third party notice - The Northland Bank collapsed - On September 1, 1985, a cura­tor was appointed to look after the bank's affairs - A Commission of Inquiry exam­ined the col­lapse in detail and issued a report on August 27, 1986 - The Canada Deposit Insurance Corp. (CDIC) co­mmenced an action in negligence against Northland's directors, etc. - The bank's liquidator also commenced an action against the officers and directors in rela­tion to 57 loan transactions - The defend­ants issued third party notices against the Bank of Canada, etc. - The third parties sub­mitted that the problems with the 57 loans would have been obvious on Sep­tember 1, 1985, when the curator was appointed - Therefore, the limitation period should commence on that date - The Alberta Court of Queen's Bench ruled that the limitation period commenced on August 27, 1986 - See para­graphs 11 and 12.

Practice - Topic 5706.1

Judgments and orders - Summary judg­ments - Third party claim - The Northland Bank collapsed - A Commis­sion of Inquiry examined the collapse in detail and issued a report on August 27, 1986 - The Canada Deposit Insurance Corp. (CDIC) commenced an action in negligence against Northland's directors, etc. - The bank's liquidator also com­menced a similar action against the officers and directors relating to 57 loan transactions - The defend­ants issued third party notices against Bouey and Bank of Canada, etc. - Bouey and the Bank of Canada claimed no know­ledge of the 57 loans and applied to have the third party notices issued in the liquid­ator's action summarily dismissed by rea­son of a lack of connec­tion between the them and the claim advanced by the liqui­dator - The Alberta Court of Queen's Bench dismissed the application - See paragraphs 1 to 10.

Cases Noticed:

Wilkesman v. 230696 Alberta Ltd. (1989), 102 A.R. 245; 71 Alta. L.R.(2d) 353 (C.A.), not folld. [para. 5].

Rago Millwork & Supplies Co. v. D. Woodhouse Construction Ltd. (1981), 28 A.R. 499 (Q.B.), not folld. [para. 5].

Canada Deposit Insurance Corp. v. Prisco et al. (1994), 158 A.R. 305 (Q.B.), consd. [para. 7].

Leeds et al. v. Alberta (Minister of Envi­ronment) et al. (1989), 98 A.R. 178 (C.A.), refd to. [para. 9].

Cascade Development Corp. et al. v. Red Deer College (1992), 129 A.R. 55 (Q.B.), refd to. [para. 9].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1995), 170 A.R. 388; 29 Alta. L.R.(3d) 125 (Q.B.), refd to. [para. 12].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1996), 181 A.R. 161; 116 W.A.C. 161; 38 Alta. L.R.(3d) 97 (C.A.), refd to. [para. 12].

Statutes Noticed:

Tort-feasors Act, R.S.A. 1980, c. T-6, sect. 3(1)(c) [para. 6].

Authors and Works Noticed:

Estey, W.Z., Report of the Inquiry into the Collapse of the CCB and Northland Bank (1986), generally [para. 14].

Counsel:

Robert M. Curtis (McCuaig Desrochers), for Gerald Bouey and Bank of Canada;

Donald Dear, Roderak A. McLennan, Q.C. (McLennan Ross), for Deloitte Haskins & Sells et al. and Touche Ross & Co. et al.;

Peter R.S. Leveque (Bennett Jones Verchere), for Clarkson Gordon, Thorne Riddell, W.K. Detlefson, Roderick J. McKay, Allan N. Tamaki, J. Crawford Smith, H. Graham Le Bourveau, Michael MacKenzie and James Peers;

Grant S. Dunlop (Ogilivie & Co.), for Canada Deposit Insurance Corporation and Her Majesty The Queen In Right of Canada as represented by the Ministers of Finance and Karl Adamsons, Andre Brossard, Joseph W. Courtright, A.F. D'Entremont, Neville Grant, William A. Kenneth, Donald M. MacPherson, Marc Lalonde, Michael Wilson, Barbara J. McDougall and Elizabeth Roscoe;

Dean Allatt (Howard, Mackie), for Deloitte & Touche Inc.;

Philip G. Lister, Q.C. (Philip G. Lister Professional Corp.), for Thomas R. Goodson;

J.P. Peacock, Q.C. (Peacock, Linder & Halt), for R.A. Fabro, Peter V. Gundy, Ralph B. MacMillan, Alan W. Scarth and Donald G. Skagen;

Thomas H. Ferguson, Q.C. and James L. Lebo, Q.C. (McCarthy Tetrault), for W. Gordon Barker and Erdman Klassen;

L.R. Duncan, Q.C., W.E. Brett Code, Sean S. Smyth, Duncan Kelly, for Sidney M. Oland and Robert A. Wilson;

Wieland Wettstein appeared on his own behalf.

This case was heard before Moore, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on March 20, 1997.