Norbridge Management Ltd. v. Lienaux et al., 2013 NSCA 3

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 20, 2012
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 3;(2013), 324 N.S.R.(2d) 143 (CA)

Norbridge Mgt. Ltd. v. Lienaux (2013), 324 N.S.R.(2d) 143 (CA);

    1029 A.P.R. 143

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.001

Charles D. Lienaux, Barrister, of the City and County of Halifax (appellant) v. Norbridge Management Limited (respondent)

(CA 408479; 2013 NSCA 3)

Indexed As: Norbridge Management Ltd. v. Lienaux et al.

Nova Scotia Court of Appeal

Bryson, J.A.

January 2, 2013.

Summary:

Lienaux challenged the validity of the Sheriff's sale of his interest in real property to satisfy a judgment debt against his wife. Norbridge was the purchaser. That application was dismissed by the Supreme Court (Warner, J.). Lienaux's appeal to the Court of Appeal was dismissed when he failed to post the required security for costs. Lienaux then applied for an order that the Sheriff's sale was void. The Sheriff applied to dismiss or stay the action on the basis of, inter alia, res judicata and/or abuse of process, arguing that the present application was an attempt to relitigate the issues already decided by Warner, J. Lienaux argued that the present application related only to actions by the Sheriff subsequent to the decision of Warner, J., and that, accordingly, res judicata and/or abuse of process did not apply.

The Nova Scotia Supreme Court, in a judgment reported (2012), 312 N.S.R.(2d) 311; 987 A.P.R. 311, agreed that the present application was an attempt to relitigate issues that had already been finally determined. Accordingly, the issues now raised were res judicata and an abuse of the court's process. Norbridge applied under s. 18 of the Sale of Land Under Execution Act for an order that Lienaux and his wife show cause why a writ of possession should not be issued to put Norbridge in possession. Norbridge argued that, pursuant to a proper interpretation of the two prior judgments, he retained a one-half interest in the property which was never subject to the judgment against his wife. Accordingly, he argued that his interest could not be subject to the Sheriff's sale.

The Nova Scotia Supreme Court, in a judgment reported (2012), 321 N.S.R.(2d) 83; 1018 A.P.R. 83, rejected Lienaux's interpretation of the judgments. He did not retain a one-half interest in the property. Lienaux appealed. Norbridge moved for security for costs.

The Nova Scotia Court of Appeal, per Bryson, J.A., ordered that Lienaux post $15,000 security for costs, absent which Norbridge was entitled to move to dismiss the appeal without further notice to Lienaux.

Practice - Topic 8207.2

Costs - Security for costs - Security for costs of an appeal - Indigent appellant - Lienaux challenged the validity of the Sheriff's sale of his interest in real property to satisfy a judgment debt against his wife - Norbridge was the purchaser - That application was dismissed by the Supreme Court (Warner, J.) - Lienaux's appeal to the Court of Appeal was dismissed when he failed to post the required security for costs - Lienaux then applied for an order that the Sheriff's sale was void - Rosinski, J., held that the application was an attempt to relitigate issues that had already been finally determined by Warner, J. - The issues raised were res judicata and an abuse of the court's process - Norbridge applied under s. 18 of the Sale of Land Under Execution Act for an order that Lienaux and his wife show cause why a writ of possession should not be issued to put Norbridge in possession - Lienaux argued that, pursuant to a proper interpretation of the two prior judgments, he retained a one-half interest in the property which was never subject to the judgment against his wife, making his interest not subject to the Sheriff's sale - The trial judge rejected the argument - Lienaux and his wife failed to show cause why a writ of possession should not be issued - Lienaux appealed - The Nova Scotia Court of Appeal, per Bryson, J.A., held that notwithstanding Lienaux's impecuniosity would deny him access to the Court of Appeal, "special circumstances" existed to warrant ordering security for costs ($15,000) - Lienaux's argument that Norbridge was the cause of his impecuniosity did not apply on appeal - There were various unsatisfied judgments and costs awards against Lienaux - Tentatively, the merits of the appeal lacked substance and Norbridge would be forced to litigate similar issues again with a virtual certainty that no costs would be recovered if the appeal were dismissed.

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances or other good reasons - [See Practice - Topic 8207.2 ].

Cases Noticed:

Lienaux et al. v. Toronto-Dominion Bank (1995), 140 N.S.R.(2d) 156; 399 A.P.R. 156 (C.A.), dist. [para. 2].

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2011), 304 N.S.R.(2d) 178; 960 A.P.R. 178; 2011 NSCA 40, refd to. [para. 17].

Smith v. Michelin North America (Canada) Inc. (2008), 265 N.S.R.(2d) 358; 848 A.P.R. 358; 2008 NSCA 52, refd to. [para. 17].

Williams Lake Conservation Co. v. Chebucto Community Council of Halifax (Regional Municipality) et al. (2005), 231 N.S.R.(2d) 320; 733 A.P.R. 320; 2005 NSCA 44, refd to. [para. 17].

Burris v. Disabled Consumer Society of Colchester et al. (2009), 278 N.S.R.(2d) 50; 886 A.P.R. 50; 2009 NSCA 21, refd to. [para. 23].

Munroe v. Morgan Industrial Contracting et al. (2004), 222 N.S.R.(2d) 274; 701 A.P.R. 274; 2004 NSCA 49, refd to. [para. 24].

Campbell v. Lienaux (2001), 196 N.S.R.(2d) 364; 613 A.P.R. 364; 2001 NSCA 122, refd to. [para. 25].

Ellph.com Solutions Inc. et al. v. Aliant Inc. et al. (2011), 306 N.S.R.(2d) 300; 968 A.P.R. 300; 2011 NSSC 316, refd to. [para. 27].

1149426 Ontario Ltd. v. Forgione, [2005] O.J. No. 2483 (Sup. Ct. Master), refd to. [para. 27].

2301072 Nova Scotia Ltd. v. Lienaux et al. (2007), 255 N.S.R.(2d) 114; 814 A.P.R. 114; 2007 NSCA 66, refd to. [para. 29].

Sissiboo Pulp Co. v. Carrier Lane Co. (1905), 40 N.S.R. 546, refd to. [para. 34].

Leighton v. Muir et al. (1961), 31 D.L.R.(2d) 383 (N.S.C.C.), refd to. [para. 34].

Pat King Ltd. v. Moore et al. (1970), 1 N.S.R.(2d) 837 (T.D.), refd to. [para. 34].

Lawrence v. Halifax Herald Ltd. et al. (1985), 68 N.S.R.(2d) 24; 159 A.P.R. 24 (C.A.), refd to. [para. 34].

Clem et al. v. Hants-Kings Business Development Centre Ltd. (2004), 224 N.S.R.(2d) 265; 708 A.P.R. 265; 2004 NSSC 114, refd to. [para. 34].

Trask v. Trask (1997), 166 N.S.R.(2d) 344; 498 A.P.R. 344 (S.C.), refd to. [para. 42].

Gill v. Hurst et al. (2011), 309 N.S.R.(2d) 86; 979 A.P.R. 86; 2011 NSCA 100, refd to. [para. 42].

Counsel:

Charles D. Lienaux, appellant, in person;

Alan V. Parish, Q.C., and Jason Cooke, for the respondent;

Karen L. Turner-Lienaux, notified but not participating.

This motion was heard on December 20, 2012, at Halifax, N.S., in Chambers before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on January 2, 2013.