Copage et al. v. Annapolis Valley Indian Band, (2004) 228 N.S.R.(2d) 284 (CA)

• Judge: Bateman, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 12, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 228 N.S.R.(2d) 284 (CA);2004 NSCA 147

Copage v. Annapolis Valley Indian Band (2004), 228 N.S.R.(2d) 284 (CA);

 723 A.P.R. 284

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.036

The Annapolis Valley Band (appellant) v. Murray Copage, Sr., Janette Peterson, Lawrence Toney and Marilyn Toney (respondents)

(CA 224799; 2004 NSCA 147)

Indexed As: Copage et al. v. Annapolis Valley Indian Band

Nova Scotia Court of Appeal

Bateman, Saunders and Fichaud, JJ.A.

December 9, 2004.

Summary:

The Annapolis Valley Band stopped paying four commissioners of the Band's Gaming Commission. The commissioners sued the Band, alleging constructive dismissal. The Band filed a counterclaim. Two of the plaintiffs, Toney and Copage filed a complaint with the Canada Labour Board. MacLellan, P.C.J., was appointed to adjudicate. MacLellan, P.C.J., determined that the employment contracts were valid and enforceable and that Toney and Copage had been wrongfully dismissed. MacLellan, P.C.J.'s decision was confirmed by order. The Band applied for judicial review. Toney filed a notice of appearance opposing the application. The application remained outstanding. Consent orders were filed dismissing the claims and counterclaims between the defendant and three of the commissioners, leaving Toney as the only plaintiff remaining in the action. Toney applied under Civil Procedure Rule 25.01 to set aside the notice of trial on the basis of issue estoppel and/or res judicata and/or abuse of process.

The Nova Scotia Supreme Court, in a decision reported at 223 N.S.R.(2d) 184; 705 A.P.R. 184, stayed the trial on the basis of the principles of res judicata and issue estoppel. The Band appealed, asserting that its counterclaim should not be subject to issue estoppel.

The Nova Scotia Court of Appeal allowed the appeal and set aside the stay of the Band's counterclaim. The court ordered that the stay of Toney's claim be lifted if the decision of MacLellan, P.C.J., was set aside on judicial review.

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - Toney and others sued an Indian band, alleging constructive dismissal - Toney and another also filed a complaint with the Canada Labour Board - The adjudicator determined that the complainants had been wrongfully dismissed - Toney was awarded damages - The claims between the band and others were dismissed, leaving Toney as the only plaintiff - Toney, through the Board's execution process, collected the damages awarded - A chambers judge stayed the action on the basis of res judicata and issue estoppel - The Nova Scotia Court of Appeal held that although the chambers judge concluded that the preconditions for estoppel existed, he failed to consider whether he should exercise his discretion - He did not balance the public interests in finality of litigation with ensuring that justice was done in the particular case - When the initial decision was from an administrative tribunal, the significance of the discretion was magnified - The court considered the factors which governed the exercise of the discretion and concluded that the Band's counterclaim should not be subject to issue estoppel.

Cases Noticed:

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].

Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 112 D.L.R.(4th) 683 (C.A.), refd to. [para. 33].

Devereaux v. Royal Bank of Canada (1996), 145 Nfld. & P.E.I.R. 334; 453 A.P.R. 334 (Nfld. T.D.), refd to. [para. 35].

Municipal Contracting Ltd. v. Nova Scotia (Attorney General) (2003), 212 N.S.R.(2d) 36; 665 A.P.R. 36 (C.A.), refd to. [para. 52].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (2000), p. 143 [para. 52].

Counsel:

Peter Nathanson, for the appellant;

Donald Urquhart, for the respondent, Lawrence Toney.

This appeal was heard on November 12, 2004, by Bateman, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following judgment for the court on December 9, 2004.