Williams v. Kameka et al., 2009 NSCA 107

• Judge: Oland, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 22, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 107;(2009), 282 N.S.R.(2d) 376 (CA)

Williams v. Kameka (2009), 282 N.S.R.(2d) 376 (CA);

    895 A.P.R. 376

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.032

Norman Kameka and Thomas Hayes (appellants) v. Ervin R. Williams (respondent)

(CA 305131; 2009 NSCA 107)

Indexed As: Williams v. Kameka et al.

Nova Scotia Court of Appeal

Oland, Fichaud and Beveridge, JJ.A.

October 22, 2009.

Summary:

The plaintiff motorcyclist and defendant motor vehicle driver were involved in an accident. The plaintiff's motorcycle was destroyed and he suffered personal injuries. The plaintiff brought a claim in the Small Claims Court for the loss of his motorcycle. The driver was found liable. The driver, having chosen not to appeal, was bound by the liability finding. The plaintiff then brought a negligence action for damages for personal injuries against both the driver and owner of the vehicle. They applied to strike the statement of claim, arguing that the accident gave rise to a single cause of action and the plaintiff's personal injuries claim merged into the Small Claims Court judgment, precluding the present claim.

The Nova Scotia Supreme Court, in a judgment reported (2008), 273 N.S.R.(2d) 68; 872 A.P.R. 68, dismissed the application. It was obvious to the driver that the plaintiff's Small Claims Court claim was limited to property loss, as that court's jurisdiction was limited to awarding $100 general damages. The plaintiff was not precluded from commencing an action for damages for his personal injuries. The driver and owner appealed.

The Nova Scotia Court of Appeal allowed the appeal and struck the plaintiff's claim.

Courts - Topic 6202.1

Provincial courts - Nova Scotia - Small Claims Court - Claim splitting - The plaintiff obtained judgment against the defendant in Small Claims Court for property damage resulting from an accident - The plaintiff then sued the defendant in the Supreme Court for damages for personal injuries - Section 13 of the Small Claims Court Act provided that "a claim may not be divided into two or more claims for the purpose of bringing it within the jurisdiction of the court" - The Nova Scotia Court of Appeal, per Beveridge and Oland, JJ.A., held that s. 13 did not apply, because "while it could be said that the [plaintiff] divided his cause of action into a claim for compensation or recovery for his damage to his personal property and a claim for recovery of damages for personal injuries, the division was not for the purpose of bringing his claim within the jurisdiction of the Small Claims Court" - Fichaud, J.A., dissenting on this issue, held that what the plaintiff did constituted claim splitting prohibited by s. 13 - See paragraphs 50 to 59, 90 to 105.

Equity - Topic 5041

Merger - Judgments - General - [See Estoppel - Topic 387 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - The plaintiff motorcyclist and defendant motor vehicle driver were involved in an accident - The plaintiff's motorcycle was destroyed and he suffered personal injuries - The plaintiff obtained judgment against the driver in the Small Claims Court for the loss of his motorcycle - The driver, having chosen not to appeal, was bound by the liability finding - The plaintiff then brought a negligence action for damages, for the personal injuries suffered, against both the driver and owner - The trial judge dismissed an application to strike the plaintiff's statement of claim on the basis of res judicata - The Nova Scotia Court of Appeal allowed the driver's and owner's appeal and struck the plaintiff's claim - There was only one cause of action from the single negligent act - Once the plaintiff obtained judgment in the Small Claims Court for property damage, his cause of action merged into that judgment and res judicata precluded a second action for personal injury damages against the driver - The fact that the owner was not a party to the Small Claims Court action did not mean that he could be sued - Whether the owner was a joint or concurrent tortfeasor, the plaintiff was limited by the Tortfeasors Act to recovering from him damages awarded in the Small Claims Court action - Since that judgment had been paid in full, the plaintiff had no claim against the owner - See paragraphs 1 to 89.

Torts - Topic 7204

Joint and concurrent tortfeasors - Judgment against some - Effect of - [See Estoppel - Topic 387 ].

Cases Noticed:

National Bank Financial Ltd. v. Potter et al. (2005), 238 N.S.R.(2d) 237; 757 A.P.R. 237 (C.A.), refd to. [para. 9].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 9].

Danyluk v. Ainsworth Technologies Inc. et al. (2001), 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 12].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214 (C.A.), refd to. [para. 13].

Thoday v. Thoday, [1964] 1 All E.R. 341 (C.A.), refd to. [para. 14].

Henderson v. Henderson, [1843-60] All E.R. Rep. 378; 3 Hare 100; 67 E.R. 313 (Ch. D.), refd to. [para. 16].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321 (C.A.), refd to. [para. 17].

Brunsden v. Humphrey (1884), 14 Q.B.D. 141 (C.A.), refd to. [para. 23].

Talbot v. Berchshire Country Council, [1994] Q.B. 290, refd to. [para. 23].

Wain v. Sherwood (F.) & Sons Transport Ltd., [1998] EWCA Civ. 905; [1999] PIQR P 159, refd to. [para. 23].

Cahoon v. Franks, [1967] S.C.R. 455, refd to. [para. 24].

Cox v. Simpson (Robert) Co. et al. (1973), 40 D.L.R.(3d) 213 (Ont. C.A.), refd to. [para. 27].

Daniel v. Hess, [1965] S.J. No. 196 (Dist. Ct.), refd to. [para. 28].

Baker v. Spain, [1973] B.C.J. No. 712 (Co. Ct.), refd to. [para. 28].

Bashnick et al. v. Mitchell and Crown-Mart Ltd. (1981), 8 Sask.R. 338 (Q.B.), affd. (1988), 69 Sask.R. 311 (C.A.), refd to. [para. 28].

Newton v. Allen (2005), 289 N.B.R.(2d) 369; 753 A.P.R. 369; 2005 NBQB 192, refd to. [para. 28].

Malcolm v. Carr and Chapton (1997), 200 A.R. 53; 146 W.A.C. 53 (C.A.), refd to. [para. 28].

Furlong v. Avalon Bookkeeping Services Ltd. et al. (2004), 239 Nfld. & P.E.I.R. 197; 709 A.P.R. 197; 2004 NLCA 46, refd to. [para. 28].

Gough v. Whyte (1983), 56 N.S.R.(2d) 68; 117 A.P.R. 68 (T.D.), dist. [para. 29].

Big Wheels Transport and Leasing Ltd. v. Hansen et al. (1990), 102 N.S.R.(2d) 371; 279 A.P.R. 371 (T.D.), dist. [para. 29].

Shanks v. Irving (J.D.) Ltd. (1985), 70 N.S.R.(2d) 10; 166 A.P.R. 10 (T.D.), refd to. [para. 33].

Evans v. Campbell Mitchell (1993), 22 B.C.A.C. 176; 38 W.A.C. 176; 77 B.C.L.R.(2d) 211 (C.A.), dist. [para. 37].

Spender v. Spender (1999), 9 B.C.T.C. 22 (S.C.), refd to. [para. 40, footnote 2].

Unilever PLC v. Procter & Gamble Inc. (1993), 60 F.T.R. 241; 47 C.P.R.(3d) 479 (T.D.), affd. (1995), 184 N.R. 378; 61 C.P.R.(3d) 499 (F.C.A.), refd to. [para. 40, footnote 2].

Escobar v. Yacey (1998), 229 A.R. 278; 1998 ABQB 599, refd to. [para. 40, footnote 2].

Provident Properties Inc. v. Tinley Properties Ltd., [1991] B.C.J. No. 166 (C.A.), refd to. [para. 40, footnote 2].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 47].

Comeau et al. v. Breau et al. (1994), 145 N.B.R.(2d) 329; 372 A.P.R. 329 (C.A.), refd to. [para. 68].

Ontario v. National Hard Chrome Plating Co., [1996] O.J. No. 93 (Gen. Div.), refd to. [para. 70].

Nixon v. Robert, O'Brien and Royal Insurance Co. of Canada (1983), 59 N.S.R.(2d) 245; 125 A.P.R. 245 (T.D.), refd to. [para. 71].

Wah Tat Bank v. Chan Cheng Kum, [1975] 2 All E.R. 257 (P.C.), refd to. [para. 74].

Reeves v. Arsenault et al. (1995), 136 Nfld. & P.E.I.R. 91; 423 A.P.R. 91 (P.E.I.T.D.), refd to. [para. 84].

Sorenson v. Abrametz and Wilkinson (1988), 64 Sask.R. 224 (C.A.), refd to. [para. 85].

Provincial Secretary-Treasurer v. York (1957), 16 D.L.R.(2d) 198 (N.B.C.A.), refd to. [para. 85].

Webster et al. v. Ernst & Young et al. (2003), 177 B.C.A.C. 258; 291 W.A.C. 258; 2003 BCCA 95, refd to. [para. 85].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 94].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235, refd to. [para. 94].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 9, sect. 10, sect. 11 [para. 43]; sect. 13 [para. 51]; sect. 30 [para. 52].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (2nd Ed. 1996), pp. 393 [para. 73]; 395, 396 [para. 75].

Lange, Donald J., The Doctrine of Res Judiciata in Canada (2nd Ed. 2004), pp. 170 [para. 36]; 340 [para. 31, footnote 1].

Ontario, Law Reform Commission, Report on Contribution among Wrongdoers and Contributory Negligence (1988), p. 7 [para. 76].

Phipson on Evidence (14th Ed. 1990), pp. 862, 863 [para. 15].

Spencer-Bower, George S., The Doctrine of Res Judicata (1924), p. 218 [para. 12].

Spencer-Bower, George S., and Turner, Alexander K., The Doctrine of Res Judicata (2nd Ed. 1969), paras. 19 [para. 13]; 241, 242 [para. 67].

Williams, Glanville L., Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-law Dominions (1951), para. 1 [para. 77].

Counsel:

Elissa Hoverd, for the appellants;

Tony W. Mozvik, for the respondent.

This appeal was heard on June 16, 2009, at Halifax, N.S., before Oland, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On October 22, 2009, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Beveridge, J.A. (Oland, J.A., concurring) - see paragraphs 1 to 89;

Fichaud, J.A. - see paragraphs 90 to 105.