Lienaux v. Purcell, (2012) 312 N.S.R.(2d) 311 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 12, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 312 N.S.R.(2d) 311 (SC);2012 NSSC 38

Lienaux v. Purcell (2012), 312 N.S.R.(2d) 311 (SC);

    987 A.P.R. 311

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. JA.073

Charles D. Lienaux (applicant) v. Laurel Purcell (respondent)

(Hfx. No. 357864; 2012 NSSC 38)

Indexed As: Lienaux v. Purcell

Nova Scotia Supreme Court

Rosinski, J.

January 24, 2012.

Summary:

Lienaux challenged the validity of the Sheriff's sale of his interest in real property to satisfy a judgment debt against his wife. That application was dismissed by the Supreme Court (Warner, J.). Lienaux's appeal to the Court of Appeal was dismissed when he failed to post the required security for costs. Lienaux then applied for an order that the Sheriff's sale was void. The Sheriff applied to dismiss or stay the action on the basis of, inter alia, res judicata and/or abuse of process, arguing that the present application was an attempt to relitigate the issues already decided by Warner, J. Lienaux argued that the present application related only to actions by the Sheriff subsequent to the decision of Warner, J., and that, accordingly, res judicata and/or abuse of process did not apply.

The Nova Scotia Supreme Court agreed that the present application was an attempt to relitigate issues that had already been finally determined. Accordingly, the issues now raised were res judicata and an abuse of the court's process.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Lienaux challenged the validity of the Sheriff's sale of his interest in real property to satisfy a judgment debt against his wife - That application was dismissed by the Supreme Court (Warner, J.) - Lienaux's appeal to the Court of Appeal was dismissed when he failed to post the required security for costs - Lienaux then applied for an order cancelling the Sheriff's sale as void - The Sheriff applied to dismiss or stay the action on the basis of, inter alia, res judicata and/or abuse of process, arguing that the present application was an attempt to relitigate the issues already decided by Warner, J. - Lienaux argued that the present application related only to actions by the Sheriff subsequent to the decision of Warner, J., and that, accordingly, res judicata and/or abuse of process did not apply - The Nova Scotia Supreme Court agreed that the present application was an attempt to relitigate issues that had already been finally determined - Accordingly, the issues now raised were res judicata and an abuse of the court's process - The court stated that "to the extent that the issues are nuanced differently by Mr. Lienaux in his Chambers application, they are either the same issues or they are approaches to those same issues that in essence were raised, or could, and should have been, raised before Justice Warner or on appeal of his decision".

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Estoppel - Topic 386 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Estoppel - Topic 386 ].

Cases Noticed:

Starratt v. Turner (1989), 78 C.B.R.(N.S.) 83 (N.S.C.A.), refd to. [para. 19].

Polycorp Properties Inc. v. Halifax (Regional Municipality), [2010] N.S.R.(2d) Uned. 183; 2010 NSSC 283, refd to. [para. 42].

Merriam v. Nova Scotia (Attorney General) (2003), 218 N.S.R.(2d) 196; 687 A.P.R. 196; 2003 NSCA 111, refd to. [para. 43].

Williams v. Kameka et al. (2009), 282 N.S.R.(2d) 376; 895 A.P.R. 376; 2009 NSCA 107, refd to. [para. 46].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 46].

Feener v. Surette (1982), 56 N.S.R.(2d) 89; 117 A.P.R. 89 (C.A.), refd to. [para. 47].

Duggan v. Nova Scotia (Attorney General) et al. (2004), 222 N.S.R.(2d) 229; 701 A.P.R. 229; 2004 NSSC 66, refd to. [para. 62].

Authors and Works Noticed:

Megarry, Robert and Wade, H.W.R., The Law of Real Property (4th Ed. 1975), pp. 391 to 396 [para. 21].

Megarry, Robert and Wade, H.W.R., The Law of Real Property (5th Ed. 1984), p. 417 [para. 19].

Counsel:

Charles D. Lienaux, self-represented;

Stephen McGrath and Sheldon Choo, for the respondent.

This application was heard on January 12, 2012, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 24, 2012.