Fitzmaurice v. CEDA Reactor Ltd. et al., (2011) 528 A.R. 190 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 16, 2011
• Citations: (2011), 528 A.R. 190 (QB)

Fitzmaurice v. CEDA Reactor Ltd. (2011), 528 A.R. 190 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.106

Brian Fitzmaurice (plaintiff/defendant by counterclaim) v. CEDA Reactor Ltd. and CEDA International Corporation

(0903 10725)

Indexed As: Fitzmaurice v. CEDA Reactor Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

November 16, 2011.

Summary:

The plaintiff sued the defendants for damages, asserting that they constructively dismissed him from his employment and ultimately terminated his employment without just cause. The defendants counterclaimed, asserting that the plaintiff had occupied a position of high fiduciary trust and confidence and continued to owe contractual duties to them, which prohibited him from competing with them or making use of confidential information obtained through his employment with them. The plaintiff moved to sever the counterclaim.

The Alberta Court of Queen's Bench dismissed the motion.

Practice - Topic 1836

Pleadings - Counterclaim and set-off - Counterclaim - Severability - Circumstances when counterclaim may be severed from original claim - The plaintiff sued the defendants for damages, asserting that they constructively dismissed him from his employment and ultimately terminated his employment without just cause - The defendants counterclaimed, asserting that the plaintiff had occupied a position of high fiduciary trust and confidence and continued to owe contractual duties to them, which prohibited him from competing with them or making use of confidential information obtained through his employment with them - The plaintiff moved under rule 3.17 of the Alberta Court of Queen's Bench to sever the counterclaim - Rule 3.17 permitted the court to make an order under the rule if it was satisfied that the joined claim or/and parties might "(a) unduly complicate or delay the action, or (b) cause undue prejudice to a party." - The defendants asserted that severance would prejudice their ability to advance their legal rights, including their claim of set-off - The Alberta Court of Queen's Bench dismissed the motion - The purpose of counterclaims was to avoid a multiplicity of proceedings - "Unduly complicate" and "cause undue prejudice" connoted a sense of seriousness and were synonymous with improper, inordinate, excessive or oppressive - The counterclaim shared a multitude of commonalities with the action - While the matter would take longer to proceed without severance, it would not unduly complicate or delay the action or cause undue prejudice to the plaintiff.

Cases Noticed:

Atlantic Acceptance Corp. v. Burns and Dutton Construction (1962) Ltd., 1970 CarswellAlta 16 (C.A.), refd to. [para. 7].

Bank of Nova Scotia v. Van Brabant (1997), 205 A.R. 133; 1997 CarswellAlta 514 (Q.B.), refd to. [para. 7].

Bank of British Columbia v. Affkor Group Ltd., Kuper and Albert (1982), 43 A.R. 14; 1982 CanLII 1182 (Q.B. Master), refd to. [para. 7].

Midas Equipment Ltd. v. Zellers Inc. and 627318 Ontario Ltd. (1989), 100 A.R. 52; 1989 CanLII 3287 (Q.B.), refd to. [para. 7].

Globex Foreign Exchange Corp. v. Kelcher et al. (2011), 513 A.R. 101; 530 W.A.C. 101; 2011 ABCA 240, refd to. [para. 7].

Murphy Oil Co. et al. v. Predator Corp. et al. (2002), 319 A.R. 328; 2002 ABQB 629, refd to. [para. 8].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 8].

Popowich v. Saskatchewan et al. (1994), 127 Sask.R. 94 (Q.B.), refd to. [para. 8].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2 Alta. L.R.(4th) 1; 2002 ABCA 110, refd to. [para. 8].

Chevron Canada Resources et al. v. Canada (1998), 239 A.R. 138; 68 Alta. L.R.(3d) 90 (Q.B.), refd to. [para. 8].

Alberta (Treasury Branches) v. Hammond (1999), 249 A.R. 295; 1999 ABQB 702, refd to. [para. 8].

Mosychuk v. Gunderson, McLennan, Ross, Wasyk and Sturgeon Valley Equipment Ltd. (1982), 45 A.R. 145; 1982 CarswellAlta 918 (Q.B. Master), refd to. [para. 8].

Grenke v. Sookermany (1987), 75 A.R. 300 (Q.B. Master), refd to. [para. 8].

IBM Canada Ltd. v. Kossovan et al. (2011), 528 A.R. 1; 2011 ABQB 621, refd to. [para. 8].

Statutes Noticed:

Rules of Court (Alta.), rule 3.71 [para. 6].

Counsel:

G.M. Hope, for the applicant/plaintiff;

M.C. O'Brien, for the respondents/defendants;

D.W. McGrath, Q.C., for the respondents/defendants.

This motion was heard on November 16, 2011, by Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment orally on the same date.