Morris et al. v. Stuckless, (1995) 143 N.S.R.(2d) 212 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 12, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 143 N.S.R.(2d) 212 (SC)

Morris v. Stuckless (1995), 143 N.S.R.(2d) 212 (SC);

  411 A.P.R. 212

MLB headnote and full text

Reginald Morris and Seaway Distributors Limited (plaintiffs) v. George Stuckless (defendant)

(S.H. No. 78193)

Indexed As: Morris et al. v. Stuckless

Nova Scotia Supreme Court

Goodfellow, J.

July 25, 1995.

Summary:

Morris and Stuckless operated Seaway Distributors for a number of years. Morris and Seaway brought an action against Stuckless alleging deceit, negligence, breach of trust, breach of fiduciary relationship and breach of agreement. They brought a pre­liminary motion seeking permission to tender portions of the discovery evidence of Morris as evidence in the trial because Morris was terminally ill and could not testify at trial. Stuckless brought a motion seeking an ad­journment to allow time to complete an expert report.

The Nova Scotia Supreme Court, in a decision reported 138 N.S.R. 397; 394 A.P.R. 397, allowed the motion. The court also granted the adjournment provided, inter alia, that the court take on the file as case manager. Thereafter, Morris passed away. Despite the court's efforts in the management of the file, a number of issues remained outstanding.

The Nova Scotia Supreme Court deter­mined the issues accordingly.

Practice - Topic 550

Parties - Death of a party - General - Morris and Stuckless operated Seaway Distributors for a number of years - Mor­ris and Seaway brought an action against Stuckless - Prior to trial, Morris passed away - At issue was, inter alia, in what manner the action of Morris should be continued and whether Stuckless was entitled to a copy of Morris' will - The Nova Scotia Supreme Court held that it was clear from the Survival of Actions Act, s. 2, the cause of action survived - The court further held that the action should be stayed until Stuckless was pro­vided with a copy of Morris' will - This was necessary to ensure that the estate was properly represented as a party at the trial - Finally, the court held that letters pro­bate were necessary - See para­graphs 23 to 38.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - Morris and Stuckless operated Seaway Distributors for a number of years - Morris and Seaway brought an action against Stuckless - Prior to the trial Morris passed away - At issue was, inter alia, whether Stuckless was entitled to amend his plead­ings to include a new claim - A notice of trial had been filed and the trial date set - The Nova Scotia Supreme Court allowed the applica­tion where the amend­ment could be made without an injustice to the other parties, or where there was an injus­tice, Morris and Seaway could be compen­sated by an award of costs - See para­graphs 49 to 55.

Practice - Topic 2137.1

Pleadings - Amendment of pleadings - After notice of trial filed - [See Practice - Topic 2110 ].

Practice - Topic 4499

Discovery - Use of examination in court - Deponent deceased - Morris and Stuckless operated Seaway Distributors for a number of years - Morris and Seaway brought an action against Stuckless - They brought a preliminary motion seeking permission to tender portions of the discovery evidence of Morris as evidence in the trial - Morris was terminally ill and could not testify - The trial judge allowed the motion - Thereafter, Morris passed away - Despite the court's efforts in the management of the file, a number of issues remained outstanding, including how much of Mor­ris' discovery evidence was admissible - The Nova Scotia Supreme Court held that Morris and Seaway could "tender such portions of the discovery examination deposition of ... Morris as is otherwise admissible under the laws of evidence as his evidence in this action" - See para­graphs 13 to 22.

Practice - Topic 8105

Costs - Security for costs - Considerations - Morris and Stuckless operated Seaway Distributors for a number of years - Mor­ris and Seaway brought an action against Stuckless - Prior to the trial Morris passed away - At issue was, inter alia, whether Stuckless was entitled to have the Estate of Morris post security for costs under Civil Pro­cedure Rule 42.01 and whether Stuckless was entitled to have Seaway post security for costs under the Companies Act, s. 152 - The Nova Scotia Supreme Court denied the application stating that there was no basis for security for costs under rule 42.01 and that it was unfair to order se­curity for costs under the Com­panies Act - See paragraphs 39 to 48.

Practice - Topic 8107

Costs - Security for costs - Where plain­tiff is corporation or association - General - [See Practice - Topic 8105 ].

Cases Noticed:

Zervobeakos v. Prudential Assurance Co. (1981), 47 N.S.R.(2d) 712; 90 A.P.R. 712 (T.D.), refd to. [para. 22].

Webb v. Adkins (1854), 23 L.J.C.P. 96, refd to. [para. 33].

Tarn v. Commercial Bank of Sydney (1884), 12 Q.B.D. 294, refd to. [para. 33].

Crowhurst Park, Re, [1974] 1 All E.R. 991, refd to. [para. 33].

Ingall v. Moran, [1994] 1 K.B. 160 (C.A.), refd to. [para. 34].

Baumhour et al. v. Williams et al. (1977), 22 N.S.R.(2d) 564; 31 A.P.R. 564 (C.A.), refd to. [para. 53].

White and White v. Pellerine (1988), 84 N.S.R.(2d) 341; 213 A.P.R. 341 (C.A.), refd to. [para. 53].

Statutes Noticed:

Survival of Actions Act, R.S.N.S. 1989, c. 453, sect. 2 [para. 30]; sect. 7 [para. 31].

Civil Procedure Rules (N.S.), rule 18.14(1) [para. 19]; rule 18.14(2) [para. 22]; rule 28.05(2), rule 28.05(3), rule 28.05(4) [para. 44]; rule 42.01 [para. 38].

Companies Act, R.S.N.S. 1989, c. 81, sect. 152 [para. 38].

Counsel:

William L. Ryan, Q.C. and Roderick H. Rogers, for the plaintiffs;

Carl A. Holm, Q.C., for the defendant.

This action was heard on July 12, 1995, at Halifax, Nova Scotia, in Chambers, before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following decision orally on July 25, 1995.