IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Ashby v. McDougall Estate, 2005 NSSC 148
Date: 20050616
Docket: S.K. 241019
Registry: Kentville
Between:
Nancy Elizabeth Ashby
Plaintiff
v.
The Estate of Donald Corbett McDougall and Co-executors Trustees the Canada Trust Company, a body corporate, and Arleen Fagan and McDougall's Drug Store Ltd., Now 1013874 Nova Scotia Limited and Directors Michael H. Whynot and Arleen Fagan and Michael H. Whynot and Arleen Fagan
Defendant
LIBRARY HEADING
Judge: The Honourable Justice Gregory M. Warner
Heard: May 18, 2005, in Windsor, Nova Scotia
Final Written
Submissions: June 8, 2005
Subject: Civil Procedure & Res Judicata
Issue: The applicant/defendant sought an order striking the statement of claim, or alternatively, obtaining summary judgment on the basis that the unrepresented plaintiff had twice before commenced the same action against the same defendant and had both prior actions struck under Rule 14.25. They sought application of the principle of res judicata and sought an injunction to prohibit further actions against the defendant without leave of the court.
Summary: The plaintiff was a bookkeeper for a pharmacist who died in 1999, leaving his large estate to a charity subject to a $10,000.00 bequest to the bookkeeper, $100,000.00 bequest to each of his six children and a life interest to his wife and grandchildren. His will contained a clause giving assets held with a “co-owner . . . in our joint names” to the survivor. The plaintiff bookkeeper was a signing officer with the incorporated pharmacy's Bank. She claimed that on the death of the testator that she, as the sole surviving signing officer of the pharmacy “steped into the testator's position” and that she was joint on the pharmacy's banking document and therefore joint with the testator and inherited the pharmacy and a large GIC. She twice before commenced similar action, both of which were struck under Rule 14.25 (the second of which was upheld by the Court of Appeal).
Result: 1. Res judicata or issue estoppel was not applicable to the case at bar as the prior proceedings had been struck without any determination of their merits on the facts. The law of res judicata was reviewed.
2. The application to strike under Rule 14.25 was applied only to a small part of the Statement of Claim. Assuming facts pleaded to be true, it could not be said that all of the Statement of Claim failed to disclose a reasonable cause of action.
3. Application for summary judgment was granted. The relevant facts that were not in dispute left no arguable issue to be tried.
4. Application for an injunction to prohibit further action without leave of the Court was refused. It was doubtful if the Court had jurisdiction and if it did the circumstances did not merit the remedy.
5. Solicitor and client costs were awarded to the applicant/defendants.
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