MacLellan Lincoln Mercury Ltd. v. Jacobsen, 2008 NSCA 45

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 16, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 45;(2008), 265 N.S.R.(2d) 258 (CA)

MacLellan Lincoln v. Jacobsen (2008), 265 N.S.R.(2d) 258 (CA);

    848 A.P.R. 258

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MY.025

Alex L. Jacobsen (appellant) v. 1358751 Nova Scotia Limited (formerly MacLellan Lincoln Mercury Sales Limited) (respondent)

(CA 285744; 2008 NSCA 45)

Indexed As: MacLellan Lincoln Mercury Ltd. v. Jacobsen

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

May 13, 2008.

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, in a decision reported at 259 N.S.R.(2d) 8; 828 A.P.R. 8, 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. The defendant appealed.

The Nova Scotia Court of Appeal allowed the appeal in part. The plaintiff did not have to be registered to proceed with the action. However, the court struck the leave order and the execution order where the court below failed to consider the issues of delay and prejudice. The disposition was without prejudice to the plaintiff, upon notice to the defendant, to reapply for leave for the issuance of an execution order. The plaintiff was to pay the defendant costs of $2,000, on the appeal, together with disbursements as taxed or agreed. The plaintiff was also to return to the defendant the costs and disbursements allowed by the court below and pay the defendants costs of $1,000, and disbursements as taxed or agreed, on the 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 - A chambers judge held that s. 17(1) applied only to foreign corporations (i.e., corporations incorporated otherwise than by under a provincial or federal statute) - The Nova Scotia Court of Appeal affirmed the decision - See paragraphs 17 to 34.

Execution - Topic 480

General rules - Stay of execution - Grounds - 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 granting it leave 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 - A chambers judge denied a stay, holding, inter alia, that the matter of delay and the circumstances surrounding it could not be considered on an application to renew an execution order - The Nova Scotia Court of Appeal struck the leave order and the execution order - The chambers judge erred in holding that the reasons for delay were not material on such a leave application - As a result, he failed to consider the issues of delay and prejudice - See paragraphs 35 to 43.

Execution - Topic 1044

Writ of execution - Renewal - Delay - [See Execution - Topic 480 ].

Practice - Topic 201

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

Cases Noticed:

C.B.M. Contracting & Developing Ltd. v. Johnstone (1980), 39 N.S.R.(2d) 156; 71 A.P.R. 156 (C.A.), dist. [para. 11].

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. 11].

Kaeser Compressors Inc. v. Bent et al. (2006), 247 N.S.R.(2d) 359; 785 A.P.R. 359 (S.C.), refd to. [para. 11].

Cluett v. Metro Computerized Bookkeeping Ltd. et al. (2005), 233 N.S.R.(2d) 237; 739 A.P.R. 237; 2005 NSCA 84, refd to. [para. 16].

Shore v. Cantwell and Cantwell (1977), 21 N.S.R.(2d) 288; 28 A.P.R. 288 (T.D.), refd to. [para. 31].

MacMullin et al. v. D'Addario (1988), 88 N.S.R.(2d) 383; 225 A.P.R. 383 (T.D.), refd to. [para. 33].

Digby (Municipality) v. Lowe (Leon (Ted)) 1984 Ltd. (1997), 167 N.S.R.(2d) 327; 502 A.P.R. 327 (S.C.), refd to. [para. 33].

South Mountain Trout Farm Ltd. v. Mid Valley Construction (1982) Ltd. (2001), 193 N.S.R.(2d) 3; 602 A.P.R. 3 (S.C.), refd to. [para. 33].

Homewood Enterprises Ltd. v. 147486 Canada Ltd. (2003), 212 N.S.R.(2d) 390; 665 A.P.R. 390 (S.C.), refd to. [para. 33].

Commercial Credit Plan Ltd. v. MacLeod and MacLeod (1986), 75 N.S.R.(2d) 197; 186 A.P.R. 197 (T.D.), refd to. [para. 37].

N.S. Tractors & Equipment Ltd. v. Morton (1986), 79 N.S.R.(2d) 59; 196 A.P.R. 59 (T.D.), refd to. [para. 37].

Windy Bay Fisheries Ltd. v. Joseph (Neiff) Land Surveyors Ltd. (1996), 157 N.S.R.(2d) 367; 462 A.P.R. 367 (C.A.), consd. [para. 40].

Statutes Noticed:

Corporations Registration Act, R.S.N.S. 1989, c. 101, sect. 17(1) [para. 23].

Counsel:

R. Lester Jesudason, for the appellant;

Colin D. Piercey and Keith MacKay, for the respondent.

This appeal was heard on April 16, 2008, at Halifax, Nova Scotia, by Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following judgment for the court on May 13, 2008.