McNichol v. Co-op General,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Larlee and Deschênes, JJ.A.
• Neutral Citation: 2006 NBCA 54
• Citation: 2006 NBCA 54,(2006), 298 N.B.R.(2d) 44 (CA),298 NBR (2d) 44,37 CCLI (4th) 1,[2006] NBJ No 194 (QL),(2006), 298 NBR(2d) 44 (CA),[2006] N.B.J. No 194 (QL),298 N.B.R.(2d) 44,298 NBR(2d) 44
• Date: 21 March 2006
• Court: Court of Appeal (New Brunswick)

McNichol v. Co-op General (2006), 298 N.B.R.(2d) 44 (CA);

    298 R.N.-B.(2e) 44; 775 A.P.R. 44

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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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Temp. Cite: [2006] N.B.R.(2d) TBEd. MY.035

William J. McNichol (appellant) v. Co-operators General Insurance Company (respondent)

(93/05/CA; 2006 NBCA 54)

Indexed As: McNichol v. Co-operators General Insurance Co.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Deschênes, JJ.A.

March 21, 2006.

Summary:

A self-represented insured sued his insurer for indemnity under the terms of the Stan­dard Endorsement Form No. 44 of his insur­ance policy. The insured accepted a settle­ment offer which he formalized by executing a release and filing a notice of discon­tinuance. The insured sued the insurer for damages for the bad faith handling of his SEF No. 44 indemnity claim. The insurer moved under rules 23.01(2)(a) and 23.01(2)(b) of the Rules of Court to dismiss the action on the ground that it was res judicata. The insurer also sought discovery related relief.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the motion and dismissed the action. The insured appealed.

The New Brunswick Court of Appeal allowed the appeal and awarded the insured $5,000 for costs throughout, in addition to all reasonable disbursements. The court also ordered the insurer to immediately reimburse the insured for the costs and disbursements that he was required to pay pursuant to the Trial Division's judgment. The court re­mitted the matter to the Trial Division for disposition of the unresolved prayers for relief in the insurer's notice of motion.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - An insured sued his insurer for indemnity - The insured ac­cepted a settlement of the action which he formalized by executing a release and filing a notice of discontinuance - The insured sued the insurer for damages for the bad faith handling of his indemnity claim - The insurer obtained an order dismissing the action on the ground that it was res judicata - The New Brunswick Court of Appeal allowed the insured's appeal - Neither the release nor the notice of discontinuance was executed in further­ance of a court order or decision and nei­ther constituted a final judicial decision, let alone one capable of giving rise to res judicata - See paragraphs 25 to 31.

Estoppel - Topic 474

Practice - Pretrial determination - A defen­dant moved under rule 23.01(2) the Rules of Court (determination of question before trial) to dismiss the plaintiff's action on the ground that it was res judicata - A motions judge allowed the motion - The plaintiff appealed - The New Brunswick Court of Appeal held that rule 23.01(2) did not apply - Rules 23.01(2)(a) dealt with the court's jurisdiction to try an action - Res judicata did not operate to oust the court's jurisdiction - It provided a defence to which the court might give effect in the exercise of its jurisdiction to the try the action - Rule 23.01(2)(b) dealt with a plaintiff's legal capacity to commence or continue an action and was not concerned with the merits of the plaintiff's claims - Res judicata did not operate to strip the plaintiff of the legal capacity to commence or continue an action - Rule 22 (summary judgment) was best suited for the pre-trial determination of the issue - See paragraphs 22 to 24.

Practice - Topic 5260

Trials - Trial of preliminary issues - Gen­eral principles - When available or appro­priate - [See Estoppel - Topic 474 ].

Practice - Topic 7050

Costs - Party and party costs - Entitlement to - Successful party not represented by counsel - A self-represented insured sued his insurer for indemnity - The insured accepted a settlement offer which he for­malized by executing a release and filing a notice of discontinuance - The insured sued the insurer for damages for the bad faith handling of his indemnity claim - The insurer obtained an order dismissing the action on the ground that it was res judi­cata - The insured successfully appealed and sought costs - The New Brunswick Court of Appeal held that this was an appropriate case to exercise its discretion to award a self-represented litigant costs - The court reached that conclusion primari­ly because of the frivolous nature of the insurer's motion for dismissal and the improper and inaccurate evidence it pro­vided at the hearing before the motion's judge respecting the insurer's discovery testimony - The court awarded the insured $5,000 for costs throughout, in addition to all reasonable disbursements - See para­graphs 41 to 44.

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 23].

Côté v. Desjardins (2000), 232 N.B.R.(2d) 343; 598 A.P.R. 343 (C.A.), refd to. [para. 23].

Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd. et al. (2004), 271 N.B.R.(2d) 43; 712 A.P.R. 43; 2004 NBCA 46, refd to. [para. 23].

Hoque v. Montreal Trust Co. et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321 (C.A.), consd. [para. 23].

Desrosiers v. Banque Nationale du Canada (1998), 201 N.B.R.(2d) 103; 514 A.P.R. 103 (C.A.), refd to. [para. 23].

Cayouette et al. v. Co-operators General Insurance Co. (2000), 227 N.B.R.(2d) 283; 583 A.P.R. 283 (C.A.), refd to. [para. 23].

Western Delta Lands Inc. et al. v. Zurich Indemnity Co. of Canada, [1999] O.A.C. Uned. 227 (C.A.), refd to. [para. 24].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 37].

Walsh v. Nicholls et al. (2004), 273 N.B.R.(2d) 203; 717 A.P.R. 203; 2004 NBCA 59, refd to. [para. 37].

Proenca v. Squire's Home Improvements & Total Renovations Ltd. et al. (2001), 252 N.B.R.(2d) 274; 658 A.P.R. 274 (C.A.), refd to. [para. 43].

Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 2 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 43].

V.A.H. v. Lynch et al. (2001), 277 A.R. 104; 242 W.A.C. 104; 91 Alta. L.R.(3d) 1; 2001 ABCA 37, refd to. [para. 43].

Dechant v. Stevens et al. (2001), 281 A.R. 1; 248 W.A.C. 1; 89 Alta. L.R.(3d) 246 (C.A.), refd to. [para. 43].

Collins v. Collins (1999), 256 A.R. 311; 72 Alta. L.R.(3d) 300 (Q.B.), refd to. [para. 43].

Statutes Noticed:

Rules of Court (N.B.), rule 22 [para. 22]; rule 23.01(2)(a), rule 23.01(2)(b) [para. 3].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (2nd Ed. 2004), pp. 211, 212 [para. 29].

Spencer-Bower, George S., and Turner, Alexander Kingcome, The Doctrine of Res Judicata (2nd Ed. 1969), para. 39 [para. 28].

Watson, Garry D., and McGowan, Michael, Ontario Civil Practice 2006 (2006), pp. 559 to 562 [para. 24].

Counsel:

William J. McNichol, appeared in person;

Henry J. Murphy, for the respondent.

This appeal was heard and decided on March 21, 2006, by Drapeau, C.J.N.B., Larlee and Deschênes, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., delivered the following reasons for judgment for the court on May 11, 2006.