MacLellan Lincoln Mercury Ltd. v. Jacobsen, 2007 NSSC 245

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 15, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSSC 245;(2007), 259 N.S.R.(2d) 8 (SC)

MacLellan Lincoln Mercury v. Jacobsen (2007), 259 N.S.R.(2d) 8 (SC);

    828 A.P.R. 8

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AU.030

MacLellan Lincoln Mercury Limited (plaintiff) v. Alex L. Jacobsen (defendant)

(SH 280486; 2007 NSSC 245)

Indexed As: MacLellan Lincoln Mercury Ltd. v. Jacobsen

Nova Scotia Supreme Court

LeBlanc, J.

June 15, 2007.

Summary:

The plaintiff obtained default judgment against the defendant in 1987. A certificate of judgment was issued on June 16, 1987, and an execution order was issued on the same date. On May 3, 2007, the plaintiff obtained an ex parte order permitting it to renew the execution order. On May 7, 2007, the plaintiff asserted that he notified the defendant that unless the judgment debt was paid in full, steps would be taken to execute against real property owned by the defendant pursuant to the Sale of Land under Execution Act. The plaintiff applied to change the title of the action to refer to a numbered company.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, held that the defendant would not be prejudiced by the change of name. However, the court concluded that the plaintiff was required to have a valid certificate of registration to continue the sale under the Sale of Land under Execution Act. The plaintiff requested a rehearing, asserting that, pursuant to a case that had not previously been brought to the court's attention, there was no need to have a current certificate of registration in force. The defendant applied to set aside the ex parte order renewing the execution order, stay the execution or require the plaintiff to comply with the requirement of giving 30 days notice of its intention to proceed.

The Nova Scotia Supreme Court held that it had jurisdiction to reconsider the decision. The court concluded that the requirement of having a valid certificate of registration to maintain the action applied only to foreign corporations (i.e., corporations incorporated otherwise than by under a provincial or federal statute). The court dismissed the defendant's application.

Company Law - Topic 7886

Extra-provincial corporations - Licensing or registration - Status of unregistered corporation to maintain action - Section 17(1) of the Nova Scotia Corporations Registration Act required a corporation to have a certificate of registration in force to bring or maintain an action in Nova Scotia - The Nova Scotia Supreme Court held that s. 17(1) applied only to foreign corporations (i.e., corporations incorporated otherwise than by under a provincial or federal statute) - See paragraphs 7 to 12.

Execution - Topic 476

General rules - Stay of execution - General - The plaintiff obtained default judgment against the defendant in 1987 - On June 16, 1987, a certificate of judgment and an execution order were issued - On May 3, 2007, the plaintiff obtained an ex parte order permitting it to renew the execution order - The defendant applied to stay execution of the order - The defendant asserted, inter alia, that the plaintiff had not explained the reasons for the delay and that he would be significantly prejudiced if the plaintiff was permitted to proceed with the intended statutory sale of his residence - The Nova Scotia Supreme Court denied a stay - If a stay was granted, the applicable limitation period would prevent the plaintiff from enforcing its judgment against the defendant - Although execution of the order would be harsh, this was not a sufficient reason to deny the plaintiff the right to recover - Absent a rule of law, the right to pursue recovery should not easily be set aside - The defendant did not deny that he owed the debt that the judgment was based on - The judgment had been on the public record since it was obtained - There was no evidence that the defendant lacked the means to acquire another residence or to provide for his family - The potential prejudice to the plaintiff outweighed that to the defendant - See paragraphs 30 to 37.

Execution - Topic 1041

Writ of execution - Renewal - General - [See Execution - Topic 476 ].

Practice - Topic 201

Persons who can sue and be sued - Corporations - Registration requirement - [See Company Law - Topic 7886 ].

Practice - Topic 2501

Service - Personal service - On individuals - A judgment debtor asserted that it was inappropriate to allow an execution order to stand and for the sale of his residence to be permitted since he was not served with the originating notice and statement of claim indicating that steps were being taken under the Sale of Land under Execution Act - The affidavit of service indicated that the debtor was served at an address which the debtor acknowledged on cross-examination was where he lived - However, the debtor asserted that although he was living at the civic address where service was made, he was temporarily in Sydney, completing a vocational course at the time - The Nova Scotia Supreme Court noted that the debtor had taken no steps to contact the educational institution to determine whether it would be possible to establish that he was not at his residence on the date of service - The court held that the debtor had not made reasonable efforts to establish his whereabouts - The court concluded that the debtor had been served - See paragraphs 17 to 19.

Practice - Topic 6107

Judgments and orders - Amendment, rescission and variation of judgments and orders - Amendment or variation - Circumstances permitting - A corporate plaintiff sued an individual - The plaintiff applied to change the title of its action to refer to a numbered company - The Supreme Court held that the defendant would not be prejudiced by the change of name - However, the court concluded that the plaintiff was required to have a valid certificate of corporate registration to maintain the action - The plaintiff requested a rehearing, asserting that, pursuant to case law that had not previously been brought to the court's attention, there was no need to have a current certificate of registration in force - The Nova Scotia Supreme Court stated that a court could not simply change its mind - The exercise of discretion to reconsider a decision required specific reasons and should be exercised only in limited circumstances - Such circumstances existed here where it appeared that the original decision might have been based on a misconception of the state of the law - See paragraphs 3 to 7.

Cases Noticed:

C.B.M. Contracting & Developing Ltd. v. Johnstone (1980), 39 N.S.R.(2d) 156; 71 A.P.R. 156 (C.A.), not folld. [para. 3].

I.A.C. Ltd. v. Hirtle (Donald E.) Transport Ltd., Hirtle, J.P. Trailer Leasing Inc. and Proulx (1977), 27 N.S.R.(2d) 416; 41 A.P.R. 416 (T.D.), affd. (1978), 29 N.S.R.(2d) 482; 45 A.P.R. 482 (C.A.), folld. [para. 3].

Kaeser Compressors Inc. v. Bent et al. (2006), 247 N.S.R.(2d) 359; 785 A.P.R. 359 (S.C.), refd to. [para. 3].

Credit Foncier Franco-Canadien v. Fort Massey Realties Ltd. and Spiropoulos (1981), 49 N.S.R.(2d) 646; 96 A.P.R. 646 (T.D.), affd. (1982), 52 N.S.R.(2d) 600; 106 A.P.R. 600 (C.A.), refd to. [para. 4].

Burke v. Sitser et al. (2002), 208 N.S.R.(2d) 337; 652 A.P.R. 337 (C.A.), refd to. [para. 5].

Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al. (2004), 226 N.S.R.(2d) 268; 714 A.P.R. 268 (S.C.), refd to. [para. 5].

Commercial Credit Plan Ltd. v. MacLeod and MacLeod (1986), 75 N.S.R.(2d) 197; 186 A.P.R. 197 (T.D.), affd. 1986 CarswellNS 579 (C.A.), refd to. [para. 22].

N.S. Tractors & Equipment Ltd. v. Morton (1986), 79 N.S.R.(2d) 59; 196 A.P.R. 59 (T.D.), not folld. [para. 22].

Windy Bay Fisheries Ltd. v. Joseph (Neiff) Land Surveyors Ltd. (1996), 157 N.S.R.(2d) 367; 462 A.P.R. 367 (C.A.), refd to. [para. 26].

Fairway Building Supply Ltd. v. Windy Bay Fisheries Ltd., [1996] N.S.J. No. 514 (C.A.), refd to. [para. 27].

Canadian Paraplegic Association (Newfoundland and Labrador) Inc. v. Sparcott Engineering Ltd. et al. (1997), 150 Nfld. & P.E.I.R. 203; 470 A.P.R. 203; 1997 CarswellNfld 275 (Nfld. C.A.), refd to. [para. 28].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 30].

Whebby (W.E.) Ltd. v. Boehner (D.) Trucking & Excavating Ltd. et al. (2006), 249 N.S.R.(2d) 326; 792 A.P.R. 326 (C.A.), refd to. [para. 31].

Tench v. Erskine et al. (2006), 244 N.S.R.(2d) 55; 774 A.P.R. 55; 2006 NSSC 115, refd to. [para. 40].

Saturley v. Lund et al. (2006), 249 N.S.R.(2d) 103; 792 A.P.R. 103; 2006 NSSC 331, refd to. [para. 40].

Okoro v. Human Rights Commission (N.S.) et al., [2006] N.S.R.(2d) Uned. 100; 2006 NSSC 257, refd to. [para. 40].

Statutes Noticed:

Corporations Registration Act, R.S.N.S. 1989, c. 101, sect. 17(1) [para. 7].

Counsel:

Barry Mason, for the applicant;

H. Keith MacKay, for the respondent;

Colin D. Piercey, for the respondent.

This matter was heard in Halifax, Nova Scotia, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 15, 2007.