Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Kasperson v. Halifax (Regional Municipality), 2012 NSCA 110

Date:  20121101

Docket:  CA 355412

Registry: Halifax

Between:

Paul Eric Kasperson and Deborah Diane Kasperson

Appellants

and

Halifax Regional Municipality

Respondent

and

Ray Cox Jr., doing business in the name and style of

Ray Cox Construction, and Ray Cox Construction

Second Respondents

(Third Party)

Judge:                  The Honourable Justice Duncan R. Beveridge

Appeal Heard:      April 30, 2012

Subject:                Practice and Procedure:  the applicability of the doctrine of res judicata; and the Tortfeasors Act, R.S.N.S. 1989, c. 471.

Summary:            The appellants were sued in Small Claims Court for unpaid wages due to a carpenter, Ray Cox Jr.  The appellants counterclaimed for damages caused by Mr. Cox in how their heating system was installed.  The adjudicator found that wages were owed by the appellants but the amount was offset by a damage award of $25,000 in favour of the appellants.  The net judgment in favour of the appellants was not satisfied.  The appellants sued HRM in the Supreme Court alleging negligence in how building inspections were conducted, and consequent damage.  HRM denied any liability and also issued a third party claim against Ray Cox Jr. seeking contribution or indemnity.  Both HRM and Ray Cox Jr. were successful on a motion for summary judgment on the basis that cause of action estoppel precluded the suit by the appellants against HRM and HRM’s third party claim against Ray Cox Jr.  The motions judge concluded that issue estoppel did not apply.  In addition, the motions judge concluded that the judgment in favour of the appellants prevented their claim on the basis of the Tortfeasors Act.

Issues:                  Did the motions judge err in law in his analysis and conclusion with respect to the principles of res judicata and the import of the Tortfeasors Act?

Result:                  The motions judge was correct to conclude that issue estoppel did not preclude the action by the appellants.  However, he did err in law in granting the motion for summary judgment on the basis of either cause of action estoppel or the Tortfeasors Act.  HRM and Ray Cox Jr. were concurrent tortfeasors.  As such, the appellants had a separate cause of action against each, and the common law in no way precluded them from suing them one after the other.  In doing so, the Tortfeasors Act does limit the appellants’ potential judgment against HRM for the flawed heating system to the amount of damages awarded by the Small Claims Court.  That Act also limits the total recovery for such claims to that amount, but since the appellants have not been paid there is no impediment to their claim against HRM.