De Shazo v. Nations Energy Co. et al., (2006) 401 A.R. 142 (CA)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Martin, Watson and Slatter, JJ.A.
• Citation: (2006), 401 A.R. 142 (CA),2006 ABCA 400
• Date: 07 December 2006

De Shazo v. Nations Energy Co. (2006), 401 A.R. 142 (CA);

      391 W.A.C. 142

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.009

Thomas A. De Shazo (appellant/plaintiff) v. Nations Energy Company Ltd., Hashim Djojohadikusumo, Al Njoo, David G. Wilson, Ecolo Investments Limited, Patrick O'Mara, Karazhanbasmunai Jsc, Aequitas Energy, Ltd. and Novomundo Trading Ltd. (respondents/defendants)

(0501-0328-AC; 2006 ABCA 400)

Indexed As: De Shazo v. Nations Energy Co. et al.

Alberta Court of Appeal

Martin, Watson and Slatter, JJ.A.

December 20, 2006.

Summary:

The plaintiff sued the defendants, alleging fraud and oppressive conduct with respect to the business of the defendant, Nations Energy Co. Ltd. Two of the defendants, Nations Energy and Wilson, applied for summary judgment.

The Alberta Court of Queen's Bench dismissed the application. Nations Energy and Wilson appealed.

The Alberta Court of Appeal, in a decision reported at 367 A.R. 267, allowed the appeal. Several of the other defendants applied for summary judgment relying on the reasons of the Court of Appeal and the expiry of the limitation period. The plaintiff filed a discontinuance of the action.

The Alberta Court of Queen's Bench allowed the application for summary judgment. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 9802

Discontinuance - Effect of - [See Practice - Topic 9816 ].

Practice - Topic 9816

Discontinuance - Circumstances when plaintiff cannot discontinue - The plaintiff sued the defendants, alleging fraud and oppressive conduct with respect to the business of the defendant, Nations Energy Co. Ltd. - Two of the defendants, Nations Energy and Wilson, obtained summary judgment - Several of the other defendants applied for summary judgment on the same grounds - The plaintiff filed a discontinuance of the action - The chambers judge allowed the applications for summary judgment - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal - While the plaintiff had a wide ranging right to discontinue the action, the defendants had an equal right to bring an application for summary dismissal - Just as there were no conditions listed in rule 225 on the right to discontinue, there were no conditions listed in rule 159(2) on the right to seek summary dismissal - The plaintiff filed a discontinuance of action and thereby attempted to deprive the defendants of their right to seek summary dismissal - This was prejudicial to the defendants and abusive of the processes of the court - The chambers judge was correct to proceed in the face of the discontinuance.

Cases Noticed:

Coyle v. Coyle Estate, [2006] 4 W.W.R. 268; 383 A.R. 135; 18 C.P.C.(6th) 630; 2005 ABQB 436, dist. [para. 8].

Fox v. Star Newspaper Company, [1898] 1 Q.B. 636 (C.A.), affd. [1900] A.C. 19 (H.L.), refd to. [para. 10].

Magee v. Canada Coach Lines Ltd., [1946] O.W.N. 73 (Master), refd to. [para. 11].

Lye v. McConnell (1905), 5 O.W.R. 326, refd to. [para. 11].

Kennedy v. Gunnar-Nesbitt Aviation Ltd., [1973] 5 W.W.R. 41; 38 D.L.R.(3d) 288 (Alta. S.C.), refd to. [para. 11].

Angelopoulos v. Angelopoulos (1986), 9 C.P.C.(2d) 285 (Ont. H.C.), refd to. [para. 11].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 12].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 12].

Statutes Noticed:

Rules of Court (Alta.), rule 225(1) [para. 7].

Authors and Works Noticed:

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, p. 25 [para. 12].

Counsel:

D.J. McDonald, Q.C., and J. Varzari, for the appellant;

H. Gorman and E. Embury, for the respondents, Hashim Djojohadikusumo, Al Njoo, Ecolo Investments Limited and Karazhanbasmunai;

B.G. Nemetz, Q.C., for the respondents, Patrick O'Mara, Aequitas Energy, Ltd. and Novomundo Trading Ltd.

This appeal was heard on December 7, 2006, by Martin, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 20, 2006.