Forsythe v. Furlotte, (2016) 447 N.B.R.(2d) 48 (CA)

• Judge: Richard, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 27, 2015
• Jurisdiction: New Brunswick
• Citations: (2016), 447 N.B.R.(2d) 48 (CA);2016 NBCA 6

Forsythe v. Furlotte (2016), 447 N.B.R.(2d) 48 (CA);

    447 R.N.-B.(2e) 48; 1171 A.P.R. 48

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MR.002

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MR.002

Michael George Forsythe (appellant) v. Weldon Furlotte (respondent)

(113-14-CA; 2016 NBCA 6)

Indexed As: Forsythe v. Furlotte

Répertorié: Forsythe v. Furlotte

New Brunswick Court of Appeal

Richard, Quigg and Green, JJ.A.

February 25, 2016.

Summary:

Résumé:

Furlotte was injured in a motor vehicle accident and pursued a personal injury action. Being displeased with the award of damages he received, Furlotte commenced an action against the doctor (Forsythe) who conducted an independent medical assessment and on whose expert testimony the court relied in the personal injury action. The doctor sought to have the action dismissed.

The New Brunswick Court of Queen's Bench, Trial Division, refused to dismiss the action summarily. The doctor appealed, arguing that the statement of claim should be struck as the action constituted an abuse of process.

The New Brunswick Court of Appeal allowed the appeal, set aside the motions judge's decision, struck out the statement of claim and dismissed Furlotte's action.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Practice - Topic 5361 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - Furlotte was injured in a motor vehicle accident and pursued a personal injury action - Being displeased with the damage award, Furlotte sued the doctor (Forsythe) who conducted an independent medical assessment and on whose expert testimony the court relied in the personal injury action - The doctor sought to have the action dismissed - A motions judge refused to dismiss the action summarily - The doctor appealed - The New Brunswick Court of Appeal allowed the appeal and struck the statement of claim - The motions judge's decision was not entitled to any deference because it was founded on an erroneous understanding of the governing principle - To allow the action to proceed would constitute an abuse of the court's process by relitigation - "If, instead of relying on the test normally applied in a summary judgment situation, the motion judge had applied the proper criteria and focussed on the effect the action against Dr. Forsythe would have on the administration of justice, he would inescapably have reached the same conclusion. There simply is no justifiable basis for allowing the court's process to be abused in such a fashion" - See paragraphs 19 to 43.

Cases Noticed:

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 16].

Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, refd to. [para. 17].

Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.), refd to. [para. 24].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 24].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), refd to. [para. 28].

Moulton Contracting Ltd. v. British Columbia et al., [2013] 2 S.C.R. 227; 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 31].

Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd. et al. (2004), 271 N.B.R.(2d) 43; 712 A.P.R. 43; 2004 NBCA 46, refd to. [para. 31].

Skender v. Farley (2008), 249 B.C.A.C. 284; 414 W.A.C. 284; 2007 BCCA 629, refd to. [para. 33].

Statutes Noticed:

Rules of Court (N.B.), rule 27.09 [para. 19].

Counsel:

Avocats:

Matthew R. Letson, for the appellant;

Weldon Furlotte appeared in person.

This appeal was heard on October 27, 2015, before Richard, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered for the court by Richard, J.A., in both official languages, on February 25, 2016.