Morrison Estate v. Nova Scotia (Attorney General), 2012 NSSC 386

• Jurisdiction: Nova Scotia
• Judge: MacAdam, J.
• Neutral Citation: 2012 NSSC 386
• Citation: 2012 NSSC 386,(2012), 323 N.S.R.(2d) 37 (SC),323 NSR(2d) 37,(2012), 323 NSR(2d) 37 (SC),323 N.S.R.(2d) 37
• Date: 20 July 2012
• Court: Supreme Court of Nova Scotia (Canada)

Morrison Estate v. N.S. (A.G.) (2012), 323 N.S.R.(2d) 37 (SC);

    1025 A.P.R. 37

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. NO.036

The Estate of Elmer Stanislaus Morrison, by his Executor or Representative Joan Marie Morrison, Joan Marie Morrison, John Kin Hung Lee, by his Legal Guardian Elizabeth Lee and Elizabeth Lee (plaintiffs) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia (Department of Health), The Minister of Health for the Province of Nova Scotia at the relevant time and The Executive Director of Continuing Care for the Province of Nova Scotia (defendants)

(Hfx. No. 230887; 2012 NSSC 386)

Indexed As: Morrison Estate v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

MacAdam, J.

November 6, 2012.

Summary:

The plaintiffs sought certification of a class proceeding. The only issue between the parties related to the interpretation of s. 7(1)(a) of the Class Proceedings Act, which required that "the pleadings disclose or the notice of application discloses a cause of action." The plaintiffs submitted that it was only necessary to establish that the pleadings disclosed "a cause of action" (i.e., a single cause of action). There had already been an unsuccessful motion to strike a cause of action relating to a claim of breach of fiduciary duty. Having failed on the motion, the defendants acknowledged that the pleadings disclosed a cause of action. However, one defendant, the Attorney General of Nova Scotia (AGS), argued that s. 7(1) could require the court to scrutinize each cause of action contained in the pleadings.

The Nova Scotia Supreme Court, in a decision reported at 292 N.S.R.(2d) 158; 925 A.P.R. 158, rejected the argument and held that the pleadings disclosed a "cause of action". Accordingly, the proceeding would be certified. The AGS appealed.

The Nova Scotia Court of Appeal allowed the appeal, holding that the proper interpretation of s. 7(1)(a) was that the pleadings, in a class proceeding, had to disclose a cause of action for each claim being made by the class. The court remitted the matter to the chambers judge to determine whether the pleadings disclosed a cause of action in relation to ss. 7 and 15(1) of the Charter. The court awarded no costs given the novel subject matter of the appeal.

The Nova Scotia Supreme Court, in a decision reported at 311 N.S.R.(2d) 219; 985 A.P.R. 219, held that the cause of action alleging breach of s. 7 of the Charter was not certifiable. The court certified the cause of action alleging breach of s. 15(1) of the Charter as a class action under the Class Proceedings Act.

The Nova Scotia Supreme Court awarded the plaintiffs $40,000 lump sum costs, together with disbursements to be determined.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs' action was certified as a class proceeding - There were two proceedings before the chambers judge and an intervening appeal to determine which issues were certifiable - The Nova Scotia Supreme Court awarded the plaintiffs $40,000 lump sum costs, together with disbursements to be determined - The final determination of the entitlement, if any, of the plaintiffs to remedies against the defendants did not affect the plaintiffs' right to be certified in order to advance the proceeding - These were separate issues - The plaintiffs had been successful and were entitled to costs, to be paid forthwith and in any event of the cause.

Cases Noticed:

Caputo et al. v. Imperial Tobacco Ltd. et al., [2005] O.T.C. 160; 74 O.R.(3d) 728 (Sup. Ct.), refd to. [para. 3].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 7].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78; 1998 CarswellNS 464 (C.A.), refd to. [para. 7].

Andersen et al. v. St. Jude Medical Inc. et al. (2004), 28 C.P.C.(6th) 199 (Sup. Ct.), affd. (2006), 208 O.A.C. 10; 264 D.L.R.(4th) 557 (Div. Ct.), refd to. [para. 7].

Fresco v. Canadian Imperial Bank of Commerce (2010), 267 O.A.C. 317; 2010 ONSC 4724 (Div. Ct.), rev'd. (2012), 293 O.A.C. 248; 2012 ONCA 444, refd to. [para. 7].

Lambert v. Guidant Corp., 2009 CarswellOnt 8759 (Sup. Ct.), refd to. [para. 7].

Cherny v. Downie et al., [2009] N.S.R.(2d) Uned. 242; 2009 NSSM 54, refd to. [para. 9].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2011), 309 N.S.R.(2d) 236; 979 A.P.R. 236; 2011 NSSC 429, refd to. [para. 9].

McInnis v. Warnock, [2010] N.S.R.(2d) Uned. 215; 2010 NSSM 50, refd to. [para. 9].

Pearson v. Inco Ltd. et al. (2006), 208 O.A.C. 284; 2006 CarswellOnt 1527 (C.A.), refd to. [para. 11].

McCracken v. Canadian National Railway Co., [2010] O.T.C. Uned. 6026; 2010 ONSC 6026, refd to. [para. 11].

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, consd. [para. 18].

Ayrton v. PRL Financial (Alta.) Ltd. et al. (2006), 384 A.R. 1; 367 W.A.C. 1; 2006 ABCA 88, refd to. [para. 23].

Counsel:

Raymond F. Wagner and Michael Dull, for the plaintiffs;

Edward Gores, Q.C., Aleta Cromwell and Alison Campbell, for the defendants.

This costs matter was heard in Halifax, N.S., on July 20, 2012, by MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following decision on November 6, 2012.