Copage et al. v. Annapolis Valley Indian Band, (2004) 223 N.S.R.(2d) 184 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 22, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 223 N.S.R.(2d) 184 (SC);2004 NSSC 94

Copage v. Annapolis Valley Indian Band (2004), 223 N.S.R.(2d) 184 (SC);

 705 A.P.R. 184

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MY.008

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

(S.K. 10,860; 2004 NSSC 94)

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

Nova Scotia Supreme Court

Warner, J.

April 30, 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, J., was appointed to adjudicate. MacLellan, J., determined that the employment contracts were valid and enforceable and that Toney and Copage had been wrongfully dismissed. MacLellan's, J., 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 stayed the trial on the basis of the principles of res judicata and issue estoppel.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - Toney sued an Indian band, alleging constructive dismissal - Toney also filed a complaint with the Canada Labour Board - The adjudicator held that Toney had been wrongfully dismissed and determined the appropriate remedy - Toney applied under Civil Procedure Rule 25.01 to set aside the notice of trial based on, inter alia, the principles of res judicata and issue estoppel - The band asserted that the principles did not apply because the burden of proof before the Canada Labour Board was on the band - The Nova Scotia Supreme Court stated that the adjudicator had made findings of fact respecting all the crucial issues before him, which were the same issues before the court - Those findings of fact were not based on the burden of proof - The issue of whether or not the burden of proof was on the defendant did not affect the adjudicator's final decision - See paragraphs 46 to 48.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - Toney sued an Indian band, alleging constructive dismissal - Toney also filed a complaint with the Canada Labour Board - The adjudicator held that Toney had been wrongfully dismissed and determined the appropriate remedy - The band applied for judicial review - Toney applied under Civil Procedure Rule 25.01 to set aside the notice of trial based on, inter alia, the principles of res judicata and issue estoppel - The Band asserted that the principles did not apply because the Board's decision was not final - The Nova Scotia Supreme Court rejected the assertion - To apply for judicial review was not the same as to appeal - There was no right of appeal from the Board's decision - See paragraphs 49 to 51.

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - Lawrence Toney, Marilyn Toney, Peterson and Copage sued an Indian band, alleging constructive dismissal - Lawrence and Copage filed a complaint with the Canada Labour Board - An adjudicator determined that Lawrence and Copage had been wrongfully dismissed - Consent orders were filed dismissing the claims between the band, Copage and Marilyn - The claims between the band and Peterson were subsequently dismissed - Lawrence applied under Civil Procedure Rule 25.01 to set aside the notice of trial based on estoppel and/or res judicata and/or abuse of process - The band asserted that Lawrence required leave to bring the application where the notice of trial had been filed and 19 days had passed without objection - The band also asserted that leave required exceptional circumstances - The Nova Scotia Supreme Court held that exceptional circumstances justified the granting of leave - Lawrence could not have commenced the application prior to dismissal of the claims involving Peterson where she had not been a party to the Canada Labour Board litigation - Further many of the issues affecting Lawrence and the Band did not apply to Peterson - See paragraphs 23 to 26.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - [See Estoppel - Topic 378 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 378 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - Toney sued an Indian band, alleging constructive dismissal - Toney also filed a complaint with the Canada Labour Board - MacLellan, J., was appointed to adjudicate the complaint - MacLellan, J., held that Toney had been wrongfully dismissed and determined the appropriate remedy - Toney applied under Civil Procedure Rule 25.01 to set aside the notice of trial based on, inter alia, the principles of res judicata and issue estoppel - The band asserted that the principles did not apply because the procedures before the Labour Board were different than those before the court - The Nova Scotia Supreme Court rejected the assertion - The process before the Board was carried out in a judicial manner - The absence of any pre-hearing discovery procedures did not detract from the facts that the parties had a hearing which followed the rules of natural justice and was judicial in nature - The court was unaware of any jurisprudence that required the procedures before a tribunal or other general or specialized court to be identical or even similar to those before the court in order for res judicata and issue estoppel to apply - See paragraphs 52 to 56.

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - [See both Estoppel - Topic 377 and Estoppel Topic 388 ].

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 - The Nova Scotia Supreme Court allowed Toney's application to stay the action on the basis of res judicata and issue estoppel - The issues before the Board and the court were identical - The Board's decision was final - The parties before the board and the remaining parties before the court were the same - A four day retrial of the same subject matter would not benefit the defendant - The court could not overrule an execution order already effected under the Canada Labour Code through the Nova Scotia Court - Any decision that the Supreme Court might make would be moot - See paragraph 59.

Practice - Topic 5232

Trials - General - Notice of trial - Setting aside - [See Estoppel - Topic 378 ].

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles - When available or appropriate - Toney sued an Indian band, alleging constructive dismissal - Toney also filed a complaint with the Canada Labour Board - An adjudicator held that Toney had been wrongfully dismissed and determined the appropriate remedy - The decision was a matter of public record - Toney applied under Civil Procedure Rule 25.01 to set aside the notice of trial based on, inter alia, res judicata - There was no agreed statement of fact - The Nova Scotia Supreme Court stated that, using a principled approach, it was appropriate to decline on a preliminary or interlocutory motion to determine an issue of law where the facts were in dispute or unclear - However, this was a case of exceptional circumstances capable of being dealt with absent an agreed statement of facts - To wait until the trial before deciding the issue of res judicata was not appropriate, particularly where the basic facts were not in dispute - The information necessary to determine the issue was available from the pleadings and the public record - See paragraphs 27 to 43.

Cases Noticed:

Haupt v. Eco-Nova Multi-Media Productions Ltd. et al. (2000), 190 N.S.R.(2d) 274; 594 A.P.R. 274 (S.C.), refd to. [para. 22].

McCallum v. Pepsi-Cola Canada Ltd. et al. (1974), 15 N.S.R.(2d) 27; 14 A.P.R. 27 (T.D.), consd. [para. 30].

Curry v. Dargie (1984), 62 N.S.R.(2d) 416; 136 A.P.R. 416 (C.A.), consd. [para. 33].

Kaiser v. Multibond Inc. (2003), 219 N.S.R.(2d) 91; 692 A.P.R. 91; 2003 NSCA 122, refd to. [para. 37].

Shanks v. Irving (J.D.) Ltd. (1985), 70 N.S.R.(2d) 10; 166 A.P.R. 10 (T.D.), refd to. [para. 37].

Fraser et al. v. Westminer Canada Ltd. et al. (1996), 155 N.S.R.(2d) 347; 457 A.P.R. 347 (C.A.), refd to. [para. 37].

Seacoast Towers Services Ltd. v. MacLean (1986), 75 N.S.R.(2d) 70; 186 A.P.R. 70 (C.A.), refd to. [para. 40].

Fuller (Thomas) Construction Co. (1958) Ltd. v. Centennial Group of Companies Ltd. and Prince George Hotel Ltd. (1987), 80 N.S.R.(2d) 428; 200 A.P.R. 428 (Co. Ct.), refd to. [para. 40].

American Home Assurance Co. et al. v. Brett Pontiac Buick GMC Ltd. et al. (1992), 116 N.S.R.(2d) 319; 320 A.P.R. 319 (C.A.), refd to. [para. 40].

Morier et al. v. Rivard, [1985] 2 S.C.R. 716; 64 N.R. 46; 23 D.L.R.(4th) 1, refd to. [para. 41].

Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al. (1999), 179 N.S.R.(2d) 213; 553 A.P.R. 213 (C.A.), refd to. [para. 42].

British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc., 1996 CarswellBC 2571, refd to. [para. 53].

Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 112 D.L.R.(4th) 683 (C.A.), refd to. [para. 54].

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. 59].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 25.01 [para. 27 et seq.].

Counsel:

Donald Urquhart, for the plaintiff, Lawrence Toney;

Peter D. Nathanson, for the defendant, Annapolis Valley Band.

Warner, J., of the Nova Scotia Supreme Court, heard this action at Kentville, Nova Scotia, on April 22, 2004 and delivered the following decision on April 30, 2004.