I Cite as: Big Wheels Transport and Leasing Ltd. v. Hansen, 1990 NSSC 135 l 1990 S.T. No. 03851 I IN THE SUPREME COURT OF NOVA SCOTIA I TRIAL DIVISION BETWEEN: I BIG WHEELS TRANSPORT AND LEASING LIMITED, I Plaintiff - and -I EARL DAVID HANSEN, Defendant I - and -I STEWART CARROLL, Third Party ~ HEARD: At Truro, Nova Scotia, in Chambers before the Honourable Madam Justice Elizabeth I Roscoe, Trial Division, on November 2 7, 1990. I DECISION: November 30, 1990 I COUNSEL: Peter M. Rogers, Solicitor for the Plaintiff and Solicitor for the Third Party I Stephen Kingston, Solicitor for the Defendant I I t I I
I l 1990 S.T. No. 03851 I IN THE SUPREME COURT OF NOVA SCOTIA I TRIAL DIVISION BETWEEN: I BIG WHEELS TRANSPORT AND LEASING LIMITED, I Plaintiff - and -I EARL DAVID HANSEN, Defendant I - and -STEWART CARROLL, I Third Party ~ ROSCOE, J.: I The defendant, Earl David Hansen, has made application I pursuant to Civil Procedure Rule 25.0l(l)(a) seeking a determination I as to whether issue estoppel applies with respect to liability between the parties in this action. I FACTS I On July 17, 1989 at Sable River in Shelburne County, Nova Scotia a truck owned by the plaintiff, Big Wheels, and operated I by its employee, third party, Mr. Carroll, was involved in a t collision with an automobile owned and operated by the defendant. I I
Both vehicles were damaged, but there were A few months after the accident the defendant and the third party, in Small Claims Court in Shelburne, claiming compensation for damages to his vehicle. hearing was held in Small Claims Court before adjudicator, Tu tty. Neither party was represented in the Small Claims Court, but testified. In his written decision, both drivers were negligent and accident on an equal basis. The adjudicator found that the loss sufferred by Mr. Hansen was $932.00 to pay one half of that amount. decision and Big Wheels has complied with the order and paid $477.50 to Mr. Hansen. Subsequently, Big the Supreme Court, claiming that for the collision and claiming $8,514.10 special damages for damages to the truck, towing costs and replacement rental fees. The defendant now liability, as between the parties, is governed arising as a result of the Small Claims Court hearing. ] 2 J no personal injuries. l sued the plaintiff J On October 11, 1989 a ] W. Yorke by counsel at the hearing ] both Mr. Hansen and Mr. Carroll ] the adjudicator found that apportioned liability for the ] and ordered the defendants j No appeal was taken from that ~J l Wheels commenced this action in ] Mr. Hansen wa!:;; entirely at fault ] ] argues that the question of J by issue estoppel ] J J I
I l I LAW I Issue estoppel is one of the two applications of the general principle of res judicata. I of action estoppel. The policy I litigants from abusing the judicial process through the relitigation of causes of action and issues to bring I and to avoid a multiplicity of Estoppel and Mutuality of Parties {1986), 64 CBR 437). I of issue estoppel was explained Thoday, [1964] l All E.R. 341 at p. 352: I "The second species, which is an extension of the same ~ are many causes of action which proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between I the parties as there are conditions to be fulfilled by the plaintiff in order to establish there may be cases where the condition is a requirement common I causes of action. If in litigation action any of such separate condition has been fulfilled I competent jurisdiction, either by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, I the condition was fulfilled if the court litigation determined that it was fulfilled if the court in the first litigation determined I that it was." I The difference between issue estoppel is explained in t Doctrine of Res Judicata Second Edition at p. 150: I I 3 The other application is cause of res judicata is to prevent a finality to litigation judicial proceedings {see Issue The doctrine by Diplock, L.J. in Thoday v. I will call 'issue estoppel', rule of public policy. There can only be established by his cause of action; and fulfilment of an identical to two or more different on one such cause of issues whether a particular is determined by a court of on evidence or on admission assert that has in the first not, or deny that it was cause of action estoppel and Spencer-Bower and Turner, The
" Cause of action estoppel case where the same cause of action is alleged in successive proceedings. It is a reciprocal estoppel, as an estoppel per rem judicatam and merger. The maxim transit successful plaintiff from re-asserting in a second proceeding the cause of action which he of a judgment in the first. doctrine of merger. On the other rei publicae sit finis litium defendant the opportunity of has already lost. This is estoppel per rem judicatam. the case of plaintiff and the opposite circumstances of action has been the subject of final adjudication between parties, those determinations are its essential foundation, stand, may be used as the basis of issue estoppels between the same parties when another is set up. Thus where two reason of the collision a third party suffered damage, on an action by the third party against damages, in which each driver claimed contribution from the other, the court held both sufficient to found an estoppel on a different cause of action al together when one driver sued the other for he himself had suffered arising directly out of the accident." (Marginson v. Blackburn Borough Council, 273) In Carl Zeiss Stiftung (No. 2), [1967] 1 A.C. 853 at p. 935, Lord Guest said: " The requirements of issue estoppel still remain (1) that the same question has been decision which is said to and ( 3) that the parties to the judicial decision or their privies were the same persons proceedings in which the estoppel is raised or their privies." Both Thoday v. Thoday been approved and followed by the Supreme Court of Canada in Angle ~ l 4 J is applicable solely to the J and operates both conversely by way of ] in rem judicatam prevents a has already made the subject ] This is the operation of the hand the maxim interest denies the unsuccessful relitigating a case which he l (And defendant may be reversed when obtain.) But where one cause ] of particular issues which without which it could not l cause of action altogether motor vehicles collided, and by and both drivers for to blame, this finding was damage which ] [ 1939] 1 All E.R. ] v. Rayner & Keeler Ltd. ] ]~ decided; ( 2) that the judicial create the estoppel was final; ] as the parties to the ] and Carl Zeiss Stiftung have l I
' . I t I v. Minister of National Revenue I Court of Nova Scotia Appeal Di vision has also followed Carl Zeiss Stiftung and Angle v. M.N.R. in Re Langille I (bankrupt) (1985), 69 N.S.R. (2d) 140. I The defendant, in this I requirements, as set out in Carl Zeiss Stiftung,have been met with respect to the question of liability between the parties and that I it is not open for Big Wheels liability and contributory negligence. I ~ The plaintiff, however, Claims Court would not have had I quantum of damages alleged to be suffered by Big Wheels, the matter is not subject to issue estoppel. I Claims Court is limited by s. I R.S.N.S. 1989 c. 4 30 to $3,000.00. The plaintiff relies on Gough v. Whyte (1983), I (2d) 68 (N.S.T.D.). In that case Grant, J. found that res judicata did not apply to bar an action I had successfully sued in the Small Claims Court for his deductible and other expenses not covered I J. found that special circumstances l knew of the subrogated claim I I 5 ( 1974), 2 N .R. 397. The Supreme (H & L) Enterprises case, submits that the three to now reli tigate the issue of argues that since the Small jurisdiction to deal with the The jurisdiction of the Small 9 of the Small Claims Court Act monetary awards not exceeding 56 N.S.R. by an insurer after the insured by the insurance policy. Grant, existed since the defendant of the insurer prior to the
commencement of the Small Claims the plaintiff's action on a defence of res judicata would permit a grave injustice to be done. v. Whyte was that the insurer of the plaintiff was the Small Claims Court hearing until after the hearing was I agree with the should be distinguished from the present case since it concerned cause of action estoppel and not issue estoppel and that the special circumstances that existed in that case are not present in this case. The plaintiff also argues that it would be inequitable to allow the determination of liability in the Small Claims Court to stand since the plaintiff had Small Claims Court action transferred to a superior court. as the defendant points out, the plaintiff did have the opportunity, at the time the Small Claims effectively remove the matter from the jurisdiction of that court. If, on receiving notice of the action in the Small Claims Court, the plaintiff had immediately commenced its action in the Supreme Court, the Small Claims Court would proceed, since s. 15 of the Small Claims Court Act says: ' ] 6 J ] Court action and that to stop ] Another important fact in Gough not aware of ] over. l ] defendant's submission that Gough ] ] ] no method available to have the ] However, l Court action was commenced, to ] J not have had jurisdiction to J J J I
I l 7 I "The court does not have jurisdiction in respect of a claim where the issues in dispute are already before another court I unless that proceeding is withdrawn, abandoned, struck out or transferred in accordance with subsection ( 2) of Section 19 o II I I The plaintiff submits that "already" as used in s. 15 means prior to the commencement of the action in the Small Claims I Court and not prior to the hearing in the Small Claims Court, however, I am unable to agree with that interpretation. I Another method of ousting the jurisdiction of the I Small Claims Court that was available to the plaintiff but not '-' utilized was that of filing a counterclaim in the Small Claims Court for the entire amount of its damages. Since the counterclaim, I if made, would have been in excess of the jurisdiction of the Small Claims Court, the adjudicator would have had to dismiss the action I in that court, which would have allowed the parties to proceed I to ha~e the matter adjudicated in the Supreme Court~ This procedure was used by the defendant in Llewellyn (R.) Building Supplies Ltd. I v. Nevitt (1987), 80 N.S.R. (2d) 415 where the dismissal of the adjudicator for lack of jurisdiction was approved by the County I Court. I Al though I agree that the Small Claims Court did not l have jurisdiction to entertain a claim in excess of $3,000.00, I I
it did have jurisdiction to determine the issue of liability for the accident when the claim before it was and since the issue was fully argued as between the same parties, and not appealed, the three requirements for issue estoppel have been met. The issue of liability must be taken as being finally determined and the plaintiff is not at liberty to reopen that issue. The application of the defendant is granted and this matter shall proceed on the basis that liability for the accident is equal, with the only issue remaining being the quantum of damages suffered by the plaintiff. HALIFAX, NOVA SCOTIA NOVE~BER 30, 1990 l ' 8 J l less than $3,000.00, l ] ] l ] ] ,j J. ] J l l ] J l ....J l J
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