Hurley v. Co-operators General Insurance Co., (1998) 169 N.S.R.(2d) 22 (CA)

• Judge: Clarke, C.J.N.S., Hart and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 12, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 169 N.S.R.(2d) 22 (CA)

Hurley v. Co-op General (1998), 169 N.S.R.(2d) 22 (CA);

    508 A.P.R. 22

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. JN.021

Francis J. Hurley (appellant) v. Co-operators General Insurance Company (respondent)

(C.A. No. 144304)

Indexed As: Hurley v. Co-operators  General Insurance Co.

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Hart and Flinn, JJ.A.

May 12, 1998.

Summary:

In 1994, the plaintiff sued his insurer, claiming indemnification under a fire insur­ance policy. In 1997, a Cham­bers judge dismissed the action for want of prosecution. The plaintiff appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The Nova Scotia Court of Appeal stated that "abuse of process of the Court" in the context of Civil Procedure Rule 14.25: "contemplated that, in com­mencing or maintaining a legal proceeding, the process of the court is being mis­used, or is being used for an improper purpose, as opposed to an action being brought or maintained for the assertion of legitimate rights." - See paragraph 46.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - In 1994, a plaintiff sued his insurer - In 1997, the insurer applied under Civil Pro­cedure Rule 23.18 to dismiss the action for want of prosecution - The Chambers judge dis­missed the action - Without providing detailed reasons, the judge held that there was an abuse of process and referred to Civil Procedure Rule 14.25(1)(d) (respect­ing the striking out of pleadings for abuse of process) - The Nova Scotia Court of Appeal allowed the plaintiff's appeal - Quite apart from the fact that the insurer's application was not made under rule 14.25, there was no evidence that the plaintiff was using the court's process for any pur­pose other than to litigate a cause of action - While the lack of co-operation by the plaintiff and his counsel in advancing the matter left a lot to be desired, there was no abuse of process - See paragraphs 38 to 48.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1994, a plaintiff commenced an action against his insurer - In 1997, a Chambers judge, with­out providing detailed reasons, dismissed the action for want of prosecu­tion - On appeal, the Nova Scotia Court of Appeal held that the Chambers judge erred in law in not proper­ly articulating or applying the test for dismissing the action (inordinate and inexcusable delay and prejudice) - The court stated that unless a proceeding was lying dormant, a period of three years, on its face, was not an inordi­nate period of time in which to bring a matter to trial - Although inexcusable, the delay was not inordinate - Even if it were, the delay did not prejudice the defendant - This was not a case of extreme delay where prejudice could be presumed - See paragraphs 28 to 37.

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of legal process - [See second Practice - Topic 2239 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of preju­dice - [See Practice - Topic 5360 ].

Cases Noticed:

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 27].

Savoie v. Fagan (1998), 165 N.S.R.(2d) 276; 495 A.P.R. 276 (C.A.), refd to. [para. 28].

Martell v. McAlpine (Robert) Ltd. (1978), 25 N.S.R.(2d) 540; 36 A.P.R. 540 (C.A.), refd to. [para. 28].

Allen v. McAlpine (Sir Alfred) & Sons Ltd. et al., [1968] 1 All E.R. 543 (C.A.), refd to. [para. 30].

Moir v. Landry (1991), 104 N.S.R.(2d) 281; 283 A.P.R. 281 (C.A.), refd to. [para. 30].

Saulnier v. Dartmouth Fuels Ltd. (1991), 106 N.S.R.(2d) 425; 288 A.P.R. 425 (C.A.), refd to. [para. 36].

Grovit et al. v. Doctor et al., [1997] 2 All E.R. 417 (H.L.), refd to. [para. 39].

MacCulloch (Bankrupt), Re (1992), 115 N.S.R.(2d) 131; 314 A.P.R. 131 (T.D.), refd to. [para. 43].

Lang Michener Lash Johnson v. Fabian et al. (1987), 59 O.R.(2d) 353 (H.C.), refd to. [para. 43].

House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 (C.A.), refd to. [para. 44].

Alta Surety Co. v. Toronto-Dominion Bank (1996), 95 O.A.C. 314 (C.A.), refd to. [para. 45].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.25(1)(d) [para. 41]; rule 28.13 [para. 9].

Counsel:

William P. Burchell, for the appellant;

Robert K. Dickson, for the respondent.

This appeal was heard on April 3, 1998, before Clarke, C.J.N.S., Hart and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

Flinn, J.A., delivered the following judg­ment for the court on May 12, 1998.