Lyons v. Lyons Estate, (1989) 99 N.B.R.(2d) 220 (FD)

• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 30, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 99 N.B.R.(2d) 220 (FD)

Lyons v. Lyons Estate (1989), 99 N.B.R.(2d) 220 (FD);

    99 R.N.-B.(2e) 220; 250 A.P.R. 220

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[French language version follows English language version]

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

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Marion Lyons (applicant) v. James Richard Lyons, Catherine Agnes Lyons, Necia Duane Livingstone and Central Trust Company, Executors of the Estate of the late George Stanley Lyons (respondents)

(FDM 277-86)

Indexed As: Lyons v. Lyons Estate

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

Richard, C.J.Q.B.

July 21, 1989.

Summary:

The plaintiff gave the defendants a notice to admit facts. The defendants' notice of refusal to admit the facts was not served within the required 10 days and thus was not included in the trial record. The defendants moved to amend the trial record by allowing their notice of refusal to admit facts to be included.

The New Brunswick Court of Queen's Bench, Family Division, dismissed the application.

Equity - Topic 10

Fusion of law and equity - A judge of the New Brunswick Court of Queen's Bench, Family Division, stated that "litigation should not be allowed to be a game of chance. It ought to be, by counsel and judges alike, a serious search for truth. Generally, once truth is firmly established, justice easily follows" - See paragraph 22.

Practice - Topic 4959

Admissions - Withdrawal or amendment of - When available - The New Brunswick Court of Queen's Bench, Family Division, discussed the purpose and scope of rule 51 respecting admission of facts - The court held that withdrawals or amendments of admitted facts should not be permitted unless counsel can establish, through evidence, that such admitted fact(s) are (1) either false or (2) that what is proposed to replace the admission gives rise to at least a triable issue - See paragraphs 18 to 21.

Cases Noticed:

Baydon Corp. Ltd. et al. v. Dupont Glore Forgan Canada Ltd. et al. (1974), 4 O.R.(2d) 290, refd to. [para. 12].

Gould v. Ariss Haulage Ltd. et al.; Attersley Tire Service Ltd. et al. (third parties) (1980), 106 D.L.R. (3d) 369 (Ont. H.C.), refd to. [para. 13].

Carreiro v. Bespaly, [1988] O.J. 889, refd to. [para. 14].

Statutes Noticed:

Rules of Court (N.B.), rule 51 [paras. 1, 11, 16-18, 20].

Counsel:

Stephen J. McNally, for the applicant;

Gregory E. Murphy, for the respondents.

This application was heard before Richard, C.J.Q.B., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, on June 30, 1989. The decision of Richard, C.J.Q.B., was delivered on July 21, 1989.