O'Connell v. Farr et al., 2015 NSSC 85

• Jurisdiction: Nova Scotia
• Judge: Smith
• Neutral Citation: 2015 NSSC 85
• Subject Matter: COURTS,PRACTICE,BARRISTERS AND SOLICITORS
• Citation: 2015 NSSC 85,(2015), 356 N.S.R.(2d) 201 (SC),356 NSR(2d) 201,(2015), 356 NSR(2d) 201 (SC),356 N.S.R.(2d) 201
• Date: 11 February 2015
• Court: Supreme Court of Nova Scotia (Canada)

O'Connell v. Farr (2015), 356 N.S.R.(2d) 201 (SC);

    1126 A.P.R. 201

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.046

Heather Jane O'Connell (plaintiff) v. Constance Farr, Chelsea Farr and Anton Lorde (defendants)

(Hfx. No. 297703; 2015 NSSC 85)

Indexed As: O'Connell v. Farr et al.

Nova Scotia Supreme Court

Smith, A.C.J.S.C.

February 18, 2015.

Summary:

In 2008, the plaintiff commenced an action against three defendants arising from a 2005 four vehicle accident. Two of the defendants (Farrs) had notice of the action, but were not formally served. The third defendant (Lorde) was neither notified nor served. In 2009, the action expired for non-service, but was renewed until 2010 following the plaintiff's ex parte motion under rule 4.04. None of the defendants were served. In 2013, the Prothonotary forwarded an Appearance Day Notice to the plaintiff respecting dismissal of the action under rule 4.22. At that hearing, the plaintiff was instructed to file a motion to renew the Originating Notice and statement of claim by September 30, 2013, with notice to the defendants. The plaintiff failed to do so. The plaintiff obtained an adjournment to February 14, 2014, to file the motion to renew. On that date, the plaintiff requested a further extension of time. The plaintiff was granted a further 90 days to file the motion to renew, with the action to be dismissed if the motion was not filed in time (Robertson order). There was no decision on the merits respecting dismissal of the action. The plaintiff waited until the 90th day, after the Prothonotary's office had closed, to attempt to file the motion to renew. The plaintiff applied to set aside the Robertson order and renew the Originating Notice and statement of claim.

The Nova Scotia Supreme Court held that it had inherent jurisdiction to set aside the Robertson order. The court exercised its jurisdiction to set aside the Robertson order and renew the Originating Action and statement of claim as against the Farr defendants, who had notice of the proceedings. The court declined to do so as against the Lorde defendant, as he went 9.5 years without notice of the action. As the need for this motion was due to the plaintiff's original counsel's inadvertence and neglect, counsel was personally responsible for the defendants' costs.

Barristers and Solicitors - Topic 1574

Relationship with client - Liability for costs - For delay (incl. adjournments) - [See Practice - Topic 1471 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - In 2008, the plaintiff commenced an action against three defendants arising from a 2005 four vehicle accident - Two of the defendants (Farrs) had notice of the action, but were not formally served - The third defendant (Lorde) was neither notified nor served - In 2009, the action expired for non-service, but was renewed until 2010 following the plaintiff's ex parte motion under rule 4.04 - None of the defendants were served - In 2013, the Prothonotary forwarded an Appearance Day Notice to the plaintiff respecting dismissal of the action under rule 4.22 - At that hearing, the plaintiff was instructed to file a motion to renew the Originating Notice and statement of claim by September 30, 2013, with notice to the defendants - The plaintiff failed to do so - The plaintiff obtained an adjournment to February 14, 2014, to file the motion to renew - On that date, the plaintiff requested a further extension of time - The plaintiff was granted a further 90 days to file the motion to renew, with the action to be dismissed if the motion was not filed in time (Robertson order) - There was no decision on the merits respecting dismissal of the action - The plaintiff waited until the 90th day, after the Prothonotary's office had closed, to attempt to file the motion to renew - The plaintiff applied to set aside the Robertson order and renew the Originating Notice and statement of claim - The Nova Scotia Supreme Court held that it had inherent jurisdiction to set aside the Robertson order - Inherent jurisdiction was usually exercised to set aside ex parte orders or default judgments, where the party seeking to set aside the order had no notice of it - Although the plaintiff in this case had notice, the defendants had not actually applied to dismiss the action and there was no determination of the merits of the motion - See paragraphs 20 to 30.

Courts - Topic 2189

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Orders - A court order gave a plaintiff 90 days to file a motion to renew an Originating Notice and statement of claim, failing which the action "will be dismissed" - The plaintiff failed to meet the 90 day deadline, then applied to set aside the order dismissing the action - The defendants argued that the court was functus officio - The Nova Scotia Supreme Court held that there was no final order dismissing the action - Accordingly, the doctrine of functus officio did not apply to prevent the court from setting aside the order - See paragraph 29 to 30.

Courts - Topic 6026

Provincial courts - Nova Scotia - Supreme Court - Jurisdiction - Inherent - [See Courts - Topic 2004 ].

Practice - Topic 1471

Pleadings - Statement of claim - General - Expiry and renewal - In 2008, the plaintiff commenced an action against three defendants arising from a 2005 four vehicle accident - Two of the defendants (Farrs) had notice of the action, but were not formally served - The third defendant (Lorde) was neither notified nor served - In 2009, the action expired for non-service, but was renewed until 2010 following the plaintiff's ex parte motion under rule 4.04 - None of the defendants were served - In 2013, the Prothonotary forwarded an Appearance Day Notice to the plaintiff respecting dismissal of the action under rule 4.22 - At that hearing, the plaintiff was instructed to file a motion to renew the Originating Notice and statement of claim by September 30, 2013, with notice to the defendants - The plaintiff failed to do so - The plaintiff obtained an adjournment to February 14, 2014, to file the motion to renew - On that date, the plaintiff requested a further extension of time - The plaintiff was granted a further 90 days to file the motion to renew, with the action to be dismissed if the motion was not filed in time (Robertson order) - There was no decision on the merits respecting dismissal of the action - The plaintiff waited until the 90th day, after the Prothonotary's office had closed, to attempt to file the motion to renew - The plaintiff applied to set aside the Robertson order and renew the Originating Notice and statement of claim - The Nova Scotia Supreme Court exercised its inherent jurisdiction to set aside the Robertson order dismissing the action as against the Farrs, but not as against Lorde - Respecting the Farrs, although there was inordinate and inexcusable delay, it was due to counsel's inadvertence and neglect of the file - The plaintiff intended to proceed and was unaware of counsel's failure to move the action forward in a timely manner - The Farrs had notice of the action and would not be seriously prejudiced by the delay - Respecting Lorde, he was unaware of the action until 9.5 years after it occurred - Unlike the Farrs, Lorde would be seriously prejudiced by setting aside the order dismissing the action as against him - The Originating Notice and statement of claim were renewed as against the Farrs, but not Lorde - The costs of the motion were payable personally by counsel, whose inadvertence and neglect made the motion necessary - See paragraphs 32 to 61.

Practice - Topic 2402

Writ of summons, endorsements, originating summons and originating notices - Renewal of writ of summons, etc. - When available - [See Practice - Topic 1471 ].

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - [See Practice - Topic 1471 ].

Cases Noticed:

Lord v. Smith (2013), 328 N.S.R.(2d) 189; 1039 A.P.R. 189; 2013 NSCA 34, refd to. [para. 21].

Perfaniuk v. Ladobruk and Canadian Home Insurance, [1960] M.J. No. 40 (C.A.), refd to. [para. 24].

Gates Estate et al. v. Pirate's Lure Beverage Room et al. (2004), 222 N.S.R.(2d) 86; 701 A.P.R. 86; 2004 NSCA 36, refd to. [para. 26].

Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 98 N.S.R.(2d) 429; 263 A.P.R. 429 (C.A.), refd to. [para. 27].

MacQueen et al. v. Nova Scotia et al. (2014), 348 N.S.R.(2d) 221; 1100 A.P.R. 221; 2014 NSCA 73, refd to. [para. 29].

Midland Doherty v. Rohrer and Central Trust Company (1986), 70 N.S.R.(2d) 234; 166 A.P.R. 234 (C.A.), refd to. [para. 29].

Hiscock v. Pasher (2008), 270 N.S.R.(2d) 169; 865 A.P.R. 169; 2008 NSCA 101, refd to. [para. 33, footnote 1].

Grosse v. White et al. (2010), 286 N.S.R.(2d) 273; 909 A.P.R. 273; 2010 NSSC 10, refd to. [para. 57].

Thornton v. RBC General Insurance Co. (2014), 347 N.S.R.(2d) 251; 1098 A.P.R. 251; 2014 NSSC 215, refd to. [para. 64].

Counsel:

Jason T. Cooke, for the plaintiff, Heather Jane O'Connell;

Franco Tarulli, for the defendants, Constance Farr and Chelsea Farr;

Shelley A. Wood and Nathan Sutherland, for the defendant, Anton Lorde.

This motion was heard on February 11, 2015, at Halifax, N.S., before Smith, A.C.J.S.C., of the Nova Scotia Supreme Court, whose oral judgment of February 18, 2015, was released in writing on March 24, 2015.