MacDonald v. Wedderburn, (1998) 169 N.S.R.(2d) 389 (CA)

• Judge: Freeman, Hallett and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 24, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 169 N.S.R.(2d) 389 (CA)

MacDonald v. Wedderburn (1998), 169 N.S.R.(2d) 389 (CA);

    508 A.P.R. 389

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. AU.046

Fraser R. MacDonald (appellant) v. Hobartson A.J. Wedderburn (respondent)

(CA 145693)

Indexed As: MacDonald v. Wedderburn

Nova Scotia Court of Appeal

Freeman, Hallett and Pugsley, JJ.A.

June 24, 1998.

Summary:

MacDonald sued McGill and his company for the return of $85,000 paid by MacDonald for the purchase of shares in the company. Subsequently, MacDonald sued Wedderburn, his solicitor on the share pur­chase, for pro­fessional negligence. Wedderburn applied for an order striking out the statement of claim, or alternatively, for an order staying the action until MacDonald exhausted his reme­dies and established his actual losses in the McGill action.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, stayed the action until MacDonald exhausted his remedies by pursuing the McGill action. MacDonald applied for leave to appeal.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal and set aside the direction that the action be stayed.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - MacDonald sued McGill and a company concerning the purchase of company shares - He also sued his solici­tor in the share transaction (Wedderburn) - A Chambers judge allowed Wedderburn's application to stay the Wedderburn action until MacDonald exhausted his remedies in the McGill action - The Nova Scotia Court of Appeal allowed MacDonald's appeal and set aside the stay - MacDon­ald's claim against Wedderburn was not dependant on the outcome of the McGill action - MacDonald was not obliged by the duty to mitigate to exhaust his rem­edies by pursu­ing the McGill action first where: his success was uncertain, there was no evi­dence that those defendants could respond to a judg­ment against them and no evi­dence that Wedderburn had provided a satisfactory indemnity to MacDonald for his costs if he continued the McGill action.

Cases Noticed:

Pryshlack v. Urbancic et al. (1975), 10 O.R.(2d) 263 (H.C.), dist. [para. 12].

International Chemalloly Corp. v. Hugo et al. (1979), 24 O.R.(2d) 818 (H.C.), dist. [para. 12].

Samuel v. Klein et al. (1976), 14 O.R.(2d) 389 (H.C.), dist. [para. 12].

Pilkington v. Wood, [1953] Ch. 770, refd to. [para. 28].

Gould v. Blanchard (1897), 29 N.S.R. 361 (C.A.), refd to. [para. 35].

Bank of Montreal v. Maddox & MacInnis et al. (1988), 83 N.B.R.(2d) 342; 212 A.P.R. 342 (C.A.), refd to. [para. 38].

Authors and Works Noticed:

Chitty on Contracts (27th Ed. 1994), vol. 1, pp. 1242 [para. 27]; 1243 [paras. 27, 35].

Cordery on Solicitors (1997), vol. 2, p. J-626 [para. 35].

Grant, S.M., and Rothstein, L.R., Lawyers' Professional Liability (1989), generally [para. 35].

Counsel:

Peter W. Kidston, for the appellant;

Harry E. Wrathall, Q.C., and David A. Graves, for the respondent.

This appeal was heard on June 10, 1998, before Freeman, Hallett and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

Pugsley, J.A., delivered the following judgment for the court on June 24, 1998.