Clemro Ind. Ltd. v. Isley & Sons, (1997) 215 A.R. 106 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 13, 1997
• Citations: (1997), 215 A.R. 106 (QBM)

Clemro Ind. Ltd. v. Isley & Sons (1997), 215 A.R. 106 (QBM)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. NO.045

Clemro Industries Ltd. (plaintiff) v. D & J Isley & Sons Contracting Ltd. (defendant)

(Action No. 9704-00270)

Indexed As: Clemro Industries Ltd. v. Isley (D & J) & Sons Contracting Ltd.

Alberta Court of Queen's Bench

Judicial District of Grand Prairie

Funduk, Master in Chambers

November 13, 1997.

Summary:

The defendant applied for an order striking out the statement of claim.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior pro­ceedings - A crusher, which was under warranty, broke down in April and again in July - The vendor repaired the crusher after the April breakdown on the under­standing that the purchaser would cover the trucking charges - The vendor refused to repair following the July breakdown - The purchaser sued the vendor for breach of warranty - The vendor billed the defen­dant for the April repairs ($43,211.95) - The vendor claimed that the problems were caused by the purchaser's misuse - The vendor failed to counterclaim for the repair charges - The purchaser's action was dis­missed - The vendor sued the purchaser on the repairs'contract for the cost of the repairs - The purchaser applied to have the claim struck on the grounds of abuse of process and res judicata - A Master of the Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action between same parties - [See Estoppel - Topic 387 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Estoppel - Topic 387 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Estoppel - Topic 387 ].

Practice - Topic 7025

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Failure to agree or use less expensive procedure - A purchaser sued the vendor for breach of warranty - The vendor billed the purchaser for repairs - When the purchaser's action was dis­missed, the vendor sued for the cost of the repairs - The purchaser applied to have the action struck on the ground that the vendor should have counterclaimed in the earlier action - A Master of the Alberta Court of Queen's Bench, in dismissing the ap­plication to strike, stated that "[n]ormally I would give costs to the plaintiff. How­ever, the plaintiff has created an inefficient use of court time. Instead of one lawsuit which could have disposed of everything we now have two lawsuits. If the object of litiga­tion is to make work for lawyers these litigants are doing a good job. In these circumstances there will be no costs to anybody." - See paragraph 31.

Cases Noticed:

Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313, refd to. [para. 19].

Doering v. Town of Grandview, [1976] 2 S.C.R. 621; 7 N.R. 299, consd. [para. 19].

Hall v. Hall (1958), 15 D.L.R.(2d) 638 (Alta. C.A.), consd. [para. 20].

Smode v. Deveaux et al. (1996), 216 A.R. 20; 175 W.A.C. 20 (C.A.), folld. [para. 20].

Argentia Beach (Summer Village) v. Warshawski (1991), 120 A.R. 27 (C.A.), dist. [para. 23].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214; 34 Alta. L.R.(3d) 269 (C.A.), consd. [para. 24].

Terroco Industries Ltd. v. Viking Oilfield Supply Ltd. (1987), 84 A.R. 274 (C.A.), refd to. [para. 24].

Abacus Cities Ltd. (Bankrupt) v. Bank of Montreal et al. (1987), 80 A.R. 254 (C.A.), refd to. [para. 24].

Skagos v. Emery Jamieson et al. (1986), 72 A.R. 231 (M.), refd to. [para. 25].

Turigan et al. v. Alberta (1988), 90 A.R. 118; 62 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 25].

Counsel:

R.W. Lewis, Q.C. (Lewis & Chernek), agent for W. Stefura, for the defendant;

R.G. McVey (Kay, Shipley, McVey & Smith), for the plaintiff.

This matter was heard in Chambers by Master Funduk of the Alberta Court of Queen's Bench, Judicial District of Grand Prairie, who delivered the following decision in Edmonton, Alberta, on November 13, 1997.