Perley v. Sypher et al., (1990) 106 N.B.R.(2d) 394 (TD)

• Judge: Daigle, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 29, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 106 N.B.R.(2d) 394 (TD)

Perley v. Sypher (1990), 106 N.B.R.(2d) 394 (TD);

    106 R.N.-B.(2e) 394; 265 A.P.R. 394

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Edward S. Perley (plaintiff) v. Kevin Sypher, Marcel Dionne, Jeffrey L. Mockler and Her Majesty The Queen in right of the Province of New Brunswick (defendants)

(E/C/283/89)

Indexed As: Perley v. Sypher et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

Daigle, J.

April 20, 1990.

Summary:

The defendants applied to strike out the plaintiff's statement of claim on the ground of res judicata and to dismiss the action for abuse of process.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application.

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - A lawyer commenced an action most of which was struck out - The lawyer commenced a second action based on the same facts as the first action - The second action was dismissed for abuse of process - The New Brunswick Court of Queen's Bench, Trial Division, ordered the lawyer to personally pay costs of $700 to the defendants - See paragraph 22.

Estoppel - Topic 382

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In interlocutory proceedings - A defendant before trial successfully applied to strike out most of the plaintiff's statement of claim - See paragraphs 4 to 9 - Later the plaintiff commenced a second action based on the same facts - The defendant claimed res judicata - The New Brunswick Court of Queen's Bench, Trial Division, held that the claim of res judicata was available notwithstanding that the original decision was an interlocutory proceeding - The court stated that the original decision was final for purposes of a claim of res judicata - See paragraph 19.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds, abuse of process - A defendant before trial successfully applied to strike out most of the plaintiff's statement of claim - See paragraphs 4 to 9 - Later the plaintiff commenced a second action based on the same facts - The New Brunswick Court of Queen's Bench, Trial Division, held that the second action was an abuse of process and dismissed the second action - See paragraphs 20 to 21.

Cases Noticed:

Oley and Moffatt v. Fredericton (City) (1984), 57 N.B.R.(2d) 361; 148 A.P.R. 361, refd to. [para. 14].

City of Moncton v. Aprile Contracting Ltd. (1980), 29 N.B.R.(2d) 631; 66 A.P.R. 631, refd to. [para. 14].

Vautour v. Attorney General of New Brunswick (1980), 31 N.B.R.(2d) 602; 75 A.P.R. 602, refd to. [para. 14].

Vautour v. Province of New Brunswick (1980), 32 N.B.R.(2d) 509; 78 A.P.R. 509, refd to. [para. 14].

Vautour v. Province of New Brunswick (1985), 62 N.B.R.(2d) 142; 161 A.P.R. 142 (C.A.), refd to. [para. 14].

Cox v. Cox and Canadian Imperial Bank of Commerce (1987), 82 N.B.R.(2d) 379; 208 A.P.R. 379, refd to. [para. 14].

Smerchanski v. Lewis (1980), 30 O.R.(2d) 370, refd to. [para. 16].

Dominion Trust Co. v. Kay et al.(1983), 143 D.L.R.(3d) 633, refd to. [para. 17].

Diamond v. Western Realty Co. et al., [1924] S.C.R. 308, refd to. [para. 17].

Nelles v. Ontario et al. (1989), 98 N.R. 321; 35 O.A.C. 161 (S.C.C.), refd to. [para. 21].

Statutes Noticed:

Rules of Court (N.B.), rule 23 [para. 1]; rule 23.01(2)(c), rule 27.09 [para. 20].

Counsel:

Terrance A. McCarthy, for the plaintiff;

E.D. Westhaver, Q.C., for the defendants.

This case was heard by Daigle, J., of the New Brunswick Court of Queen's Bench, Trial Division, on March 29, 1990. The decision of Daigle, J., was delivered at Edmundston, New Brunswick, on April 20, 1990.