McLellan v. Crowell, (2000) 181 N.S.R.(2d) 350 (SC)

• Judge: Cacchione, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 16, 1999
• Jurisdiction: Nova Scotia
• Citations: (2000), 181 N.S.R.(2d) 350 (SC)

McLellan v. Crowell (2000), 181 N.S.R.(2d) 350 (SC);

 560 A.P.R. 350

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. FE.004

Nelson Frederick McLellan (plaintiff) v. William Crowell, an infant (defendant)

(S.H. No. 157166)

Indexed As: McLellan v. Crowell

Nova Scotia Supreme Court

Cacchione, J.

January 18, 2000.

Summary:

The plaintiff driver struck the infant defendant in a motor vehicle/pedestrian accident. The plaintiff sued for a declaratory judgment respecting liability. He applied to have the infant's mother appointed as litiga­tion guardian. A chambers judge, although not dismissing the application, did not grant it either, but rather suggested that someone else who was not so emotionally involved in the facts of the case be put forth as a poss­ible litigation guardian. The public trustee declined to act for financial reasons. The plaintiff applied to have the mother appoint­ed as litigation guard­ian under Civil Pro­cedure Rule 6.04(1). Neither parent would act as such. The infant alleged that the issue was res judicata and asked the court to exer­cise its parens patriae jurisdic­tion to strike the pleadings.

The Nova Scotia Supreme Court held that the issue was not res judicata; refused to strike the pleadings; and refused to appoint the mother as litigation guardian.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdic­tion) - The plaintiff driver struck the infant defendant in a motor vehicle/pe­des­trian accident - The plaintiff sued for a declara­tory judgment respecting liability - He applied to have the mother appointed as litigation guardian - Nei­ther parent was prepared to act as such - The infant asked the court to exer­cise its parens patriae jurisdiction to strike the pleadings - The Nova Scotia Supreme Court refused to appoint a litigation guardian or strike the pleadings - The infant's rights were pro­tected by the Limi­tation of Actions Act which under s. 4 allowed the infant to wait until he attained the age of majority before the limitation period began to run - To strike the plead­ings would impose a heavy burden on the plaintiff by depriving him of the right to have this matter heard on its merits once the litigation guardian issue was resolved - See paragraphs 16 to 19.

Estoppel - Topic 382

Estoppel by record - Res judicata as a bar to subsequent proceedings - In interlocu­tory proceedings - The plaintiff driver struck the infant defendant in a motor vehi­cle/pedestrian accident - The plaintiff sued for a declaratory judgment respecting liability - He applied to have the infant's mother appointed as litigation guardian - A chambers judge, although not dismissing the application, did not grant it either, but rather suggested that someone else who was not so emotionally involved in the facts of the case be put forth as a possible litigation guardian - The public trustee declined to act for financial reasons - The plaintiff applied for the appointment of a litigation guardian - Neither parent would act as such - The infant alleged, inter alia, that the issue was res judicata - The Nova Scotia Supreme Court held that the issue was not res judicata - See paragraphs 5 to 6 and 12 to 15.

Infants - Topic 6044

Legal proceedings - Jurisdiction - Common law or inherent jurisdiction of courts (par­ens patriae) - [See Courts - Topic 2004 ].

Infants - Topic 6086

Legal proceedings - Representation of infants - As guardian - [See Courts - Topic 2004 ].

Practice - Topic 138

Persons who can sue and be sued - Infants - Guardian ad litem - Appointment of - The plaintiff driver struck the infant defendant in a motor vehicle/pedestrian accident - The plaintiff sued for a declara­tory judgment respecting liability - Nei­ther parent would act as litigation guardian - The plaintiff undertook not to sue the mother and applied to have her appointed as litigation guardian - The Nova Scotia Supreme Court dismissed the application - It was conceivable that the infant, upon receiving independent impartial and objec­tive advice, might want to add his parents as third parties - There was a real conflict that was not remedied by the insurer's promise not to sue the mother - It would be very difficult, if not impossible, for the mother to provide the infant with impartial independent and objective advice on the course of the litigation, where she might also have to consider her or the father's own responsibility for the event - See paragraphs 20 to 25.

Practice - Topic 2243

Pleadings - Striking out pleadings - Bars - General - [See Courts - Topic 2004 ].

Cases Noticed:

Global Petroleum Corp. v. Point Tupper Terminals Co. (1998), 170 N.S.R.(2d) 367; 515 A.P.R. 367 (C.A.), refd to. [para. 13].

Pocklington Foods Inc. v. Alberta (Provin­cial Treasurer) (1993), 152 A.R. 361; 25 C.P.C.(3d) 292 (Q.B.), affd. 165 A.R. 155; 89 W.A.C. 155 (C.A.), refd to. [paras. 13, 14].

Eve, Re (1986), 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 16].

Counsel:

David P.S. Farrar, for the plaintiff;

Cathy L. Dalziel, for the defendant.

This application was heard in Chambers, on December 16, 1999, by Cacchione, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 18, 2000.