Cite as: Brown v. Valley Pontiac Inc., 1991 NSSC 2 1989 S.H. No. 71106 IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: MURRANT BROWN, a Registered Partnership Plaintiff - and VALLEY PONTIAC BUICK INCORPORATED, a body corporate, Defendant HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice David W. Gruchy, in Chambers, on December 20, 1990 DECISION: January 7, 199~j COUNSEL: Mr. Robert Murrant, Q.C., Solicitor for the Plaintiff Mr. John Kulik, Solicitor for the Defendant
1989 IN THE SUPREME TRIAL DIVISION BETWEEN: MURRANT BROWN, a Registered Partnership - VALLEY PONTIAC BUICK INCORPORATED, a body corporate, GRUCHY, J. This 1S an application out certain paragraphs in the statement of defence filed herein, pursuant to Civil Procedure Rule 14.25(1)(b) and (c). of application was dated December Chambers on December 20, 1990. The action was commenced essentially, sets out that the later, Murrant Brown, did legal work for the defendant for which an account was presented to the defendant in the amount of Fifty-Eight Thousand Three Hundred Cents ($58,360.14). The claim is of that account in the amount of Thirteen Thousand Ninety-Five Dollars and Thirty-Four Cents not been taxed by the Taxing commencement of the action. S.H. No. 71106 COURT OF NOVA SCOTIA Plaintiff and Defendant by the Plaintiff to strike The notice 14, 1990, and was heard in At that time I reserved decision. on December 29, 1989, and, law firms of Boyne Clarke and and Sixty Dollars and Fourteen for the balance outstanding ($13,095.34). The account had Master at the time of the The file discloses that it was
subsequently taxed, but apparently respect to the result of the taxation as is evidenced by other proceedings within the file. I will briefly review proceedings of the file: 1. Originating Notice and 2, 1990; 2. Defence dated January 12, 1990 and filed January 17, 1990; 3. Application for Summary Judgment pursuant to Civil Procedure Rule 13.01 dated January 19, 1990, and filed January 22, 1990. There are various affidavits respect to that application Thursday, February 1, 1990, unsucces s f u L. 4. A further Originating Notice was dated and issued May 28, 1990, as the defendant. The application was for an order in the nature of mandamus, under Rule 56, to compel Mr. Master, to issue a decision in the taxation of the plaintiff IS account, which account includes services rendered for the subject matter of this action. Tha t affidavit of Mr. Robert Murrant decision, it would appear application, Mr. Hare completed the taxation of costs and filed a completed bill of costs. 5. On October 15, 1990, the application for set forth in No. 3 above, was docket, ini tially for October 18, changed to October 24, 1990. - 2 a difficulty exists with the various pleadings and Statement of Claim dated January and counter-affidavits filed with which was apparently heard on and which application was (Application Inter Partes) naming Arthur E. Hare, Q.C., Hare, who is a Taxing application was supported by the and although there is no that following notice of the summary judgment, again placed on the Chambers 1990, which was subsequently Further affidavits and memoranda
were submitted to the Chambers Justice Goodfellow dismissed the application for summary judgment with costs in the cause. As noted above, this interlocutory notice (application inter partes) 14, 1990. While no affidavits were filed with respect to this application, the notice does refer to the affidavits of James S. Landry and Robert Murrant, Q.C., previously filed. The points of contention found in paragraphs 3, 4, 6, defence. Those paragraphs are as follows: "3. With respect to the allegation the Plaintiff's Statement that i t received an opinion from the law firm of Boyne Clarke and on the basis of that opinion decided to retain Boyne Clarke to provide c Lai.m against the Canadian (referred to below as 'the advice received by the Defendant not contain any reference to any novel or unusual nature, feature or aspect of the that fees for legal services could be unduly expensive as a result. 4. After the transfer of the file of the Defendant's claim against the Bank from Boyne Clarke to the Plaintiff referred to in paragraph the Plaintiff never advised, Defendant aware of any novel or unusual feature or aspect of the claim by the Defendant could result in unduly expensive fees for legal services. 6. The Defendant says that the Plaintiff appropriated to itself and Boyne Clarke $33,399.74 recovered by the Defendant in the successful in partial satisfaction of the fee provided without the knowledge to the rendering of an account and at a time when Landry was negotiating a sale of the dealership to Desjardins. 7. The Defendant says that it was never properly advised or made aware of the full extent of the legal cost or - 3 Judge and on october 24 Mr. application was commenced by dated December in this application are 7,. 8 and 9 of the statement of in paragraph 3 of of Claim the Defendant says legal services relating to a Imperial Bank of Commerce Bank'l. The opinion and from Boyne Clarke did claim against the Bank nor 4 of the Statement of Claim, informed or made the against the Bank that action against the Bank, for legal services of Desjardins, prior
potential legal cost of pursuing the claim against the Bank. 8. Additionally the Defendant advised, made aware of or understood that the potential cost in bringing an action against the Bank could exceed the recovery if the action were successful. 9. The Defendant maintains that it was by the Plaintiff and understood outstanding at the time of the acquisition of the shares of the dealership by DesJardins down prior to and to facilitate share acquisition and that, in any case, the legal fees outstanding would be written down to the amount recovered by the Defendant in its successful action against the Bank. n The application is pursuant to Rule 14.25(1)(b) and (c). "14.25. (1) The court may at any stage of a proceeding order any pleading, affidavit or anything therein, to the ground that, "(a) it discloses no or defence: (b) it is false, scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; (d) it is otherwise an abuse of the process of the court: and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. (2) Unless the evidence shall be admissible on an application under paragraph (l)(a)." The function of a of this nature is aptly described in The Supreme Court Practice, 1988, p.312, as follows: - 4 was never properly led to believe that the legal fees Inc. could be written the closing of that made to strike those paragraphs That Rule reads: or statement of facts, be struck out or amended on reasonable cause of action court otherwise orders, no by affidavit or otherwise Chambers' Judge in an application
"This Rule constitutes a wide and general provision both useful and necessary to enforce the rules of pleading. It empowers the Court ... (2) to strike out any or any matter contained therein which not conform with the a pleading must contain only material facts to support a party's claim or defence, must not therefore be, or contain any matter which is, scandalous, frivolous or vexatious or which may prejudice, the fair trial of the action or is otherwise an abuse of the process of the Court. Not every pleading which offends against the rules will be struck out. The applicant must some way prejudiced by the irregularity. defendant may claim ex debito plaintiff's case presented so that he may not be embarrassed in meeting it,'." Rule 14.25 was considered of this Court in Curry v , Dargie as follows: "The law is quite clear that the summary procedure under Rule 14.25 can only be adopted where the claim is, the face of it, absolutely it is clear beyond any possibly succeed there is strike out the statement however, that the plaintiff appears unlikely to succeed at trial is no ground for of claim." For the purposes I am not restricted to considering the pleadings, but may regard affidavit evidence. I will examine in evidence before me the specific allegation in the which the plaintiff complains. - 5 pleading or indorsement does overriding rule that and embarrass or delay show that he is in Sti 11, I the justitiae to have the in an intelligible form, by the Appeal Division (1984), 62 N.S.R. (2d) 416 on unsustainable. Thus, if doubt that an action cannot no reason for refusing to of claim. The mere fact, striking out the statement of this particular application, the context of the affidavit defence of
- Paraqraph 3 Paragraph 3 of the defence contains which appear to be in issue: (a) "The opinion and advice received by the defendant from Boyne Clarke did not contain any reference to any novel or unusual nature, feature or aspect of the claim against the Bank ... " Mr. Jacques Desjardins' of a letter from Boyne Clarke dated November 18, 1985, addressed to Mr. James S. Landry of Jim Landry Pontiac Buick Limited with a copy being forwarded to allegation of this paragraph and the defence is not mentioned in Mr. Desjardins' affidavit. to various claims wi thin that letter and follows: "If however, it is the Bank's intention that this credit be tendered as full and final settlement of all of your company's outstanding claims opinion that this offer should that a cause of action exists against the Bank for its failure to provide your of its intention to call your in default." The letter then deals with certain reported cases on the subject of "bad faith" claims against banks, that such a claim against a bank has any novel or unusual nature, feature or aspect. The letter then compares the claim against the bank with a "bad faith" Company of Canada and concludes, in part, that "it is our opinion that this matter (the claim against Home Insurance) is somewhat more tenuous". ( b) "The opinion and advice from Boyne Clarke did to (the fact that) .... that fees could be unduly expensive as a result." 6 two allegations affidavit attaches a copy Mr. Desjardins. The specific There are a number of references I set them forth as against it, it is our be refused as we feel company with adequate notice loans when they were not but at no time indicates claim against the Home Insurance received by the Defendant not contain any reference for legal services
- In fact, the only for the bad faith claim against following paragraph of the letter: "Our firm would be prepared to continue this action and to defer the payment of as the court has rendered its decision in the matter. Our fee for the prosecution based upon our normal hourly rates. company would be responsible relating to the action." With respect to the paragraph 3 of the statement clearly an issue between the paragraph will not be struck. Paragraph 6 Paragraph 6 of the defence alleges that the plaintiff " ... appropriated to itself and Boyne Clarke $33,399.74 recovered by the Defendant in the Bank ... without the knowledge rendering of an account and at a time when Landry was negotiating a sale of the dealership "appropriated to itself" has a pejorative implication, suggestive. of misappropriation. There is no suggestion wi thin any of the pleadings, affidavits or memoranda that the plaintiff took that sum of money wi thout giving full credit to the misappropriating the funds in "knowledge of Desjardins" 1.S the parties. The knowledge of the defendant, but the lack of determinative, nor is the fact that the at a time when Landry was negotiating a sale of the dealership to Desjardins. These facts may but not wi thin the context of 7 reference to the matter of fees the bank is found in the our account until such time of this action would be In addition, your for any disbursements allegations complained of in of defence " therefore, there is parties and, accordingly, the successful action against the of Desjardins, prior to the to Des j ardins" . The phrase defendant or any way. Additionally, the irrelevant to the issues between Des jardins could be imputed to knowledge of Des jardins is not account was rendered be relevant in another context, this action. This particular
paragraph shall be amended Boyne Clarke recovered the against legal fees and costs. Paragraph 7 Paragraph 7 of the defence alleges that the defendant " ...was never properly advised or made aware of the full extent of the legal cost or potential legal cost of pursuing the claim against the Bank". There Mr. Desjardins and Mr. Landry on this subject. affidavits are diametrically regard. Accordingly, there It is not my function to make two sets of allegations and, not struck. Paragraph 8 Paragraph 8 of the paragraph 7 and for the same struck. Paragraph 9 Paragraph 9 of the certain negotiations which occurred defendant concerning the reduction a direct disagreement between his affidavit and that of Mr. Desjardins. should be determined by trial as application and, accordingly, of the defence. As the plaintiff's minimal, I award costs of - 8 to show that the plaintiff and/or sum of $33,399.74 and applied same is clearly a disagreement between Their respective opposed to one another in this is an issue between the parties. a decision with respect to the accordingly, this allegation is defence is similar to that of reason that allegation is not defence raises the matter of between the plaintiff and of fees. Again, there is the evidence of Mr. Landry in It is an issue which opposed to an interlocutory I will not strike that paragraph success in this application is this application to the defendant
in any event. Halifax, Nova Scotia January 7, 1991 - 9
1989 S.H. No. 71106 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: MURRANT BROWN Plaintiff - and VALLEY PONTIAC BUICK INCORPORATED Defendant DEC I S ION GRUCHY, J.
CASE NO. VOL. NO. PAGE PRENOR TRUST COMPANY v. S.B. GUPTA INVESTMENTS LIMITED OF CANADA and SHAM B. GUPTA 1990 S.H. No. 74308 GRUCHY, J. HEARD: December 20, 1990 DECISION: January 7, 1991 WRITTEN RELEASE OF ORAL: N/A SUBJECT: Practice
Application for Summary Judgment-CPR 13
Application for leave to amend defence - CPR 14
SUMMARY: Plaintiff applied for summary judgment in foreclosure action. Plaintiff had supplied details of default pursuant to Demand for Particulars and on this application. Defendants failed to discharge burden, no matter how slight, in response to application. Defence was defective, not complying with CPR.14, in that no facts were alleged to support defence . . Amendments to defence were similarly defective. Affidavit in support of application to amend defence was also defective.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.