Cite as: Feener v. Nova Scotia, 1988 NSSC 11 SBW No. 0556
SCA No. 0086
SCA No. 00980
SCA No. 01164
IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN:
HELEN BELL FEENER
Plaintiff
- and -ERR WAJESTY THE QUEEN and THE MUNICIPALITY
OF THE DISTRICT OF LUNENBURG
Defendants
HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice John M. Davison, in Chambers, on April 5th, 1988 DECISION: April 19th, 1988
COUNSEL: Caster H. F. Williams, Esq., for the Plaintiff
G. F. Philip Romney, Esq., for the Defendants
SBW No. 0556
SCA No. 0086
SCA No. 00980
SCA No. 01164
IN THE SUPREElE COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: HELEN BELL FEEWW Plaintiff - and -E m MAJESTY THE QUEEN and THE MUNICIPALITY
OF THE DISTRICT OF LUNENBURG
Defendants
DAVISON, J.:
This is an application by the Municipality of the
District of Lunenburg to strike out the Plaintiff's Notice
of Trial dated the 26th day of January, 1988, or alternatively,
to direct the Plaintiff to pay security for costs of the trial.
The Plaintiff is the wife of John Lloyd Feener. There has been a proliferation of litigation through the Nova Scotia Courts arising from a sale by the sheriff of Lunenburq County on November 16th, 1978, of lands formerly owned by John Lloyd Feener. The sale was pursuant to an Execution Order in favor of one D & E Industries Limited. By an Originating Notice issued the 11th day of
September, 1979, John Lloyd Feener commenced action against
the Municipality of Lunenburg (SBW 24687) alleging that the
Municipality took part in a conspiracy to destroy the Plaintiff
by illegally buying the Plaintiff's land. The Statement of
Claim sets out other allegations but by Order of the late Judge
Clements dated the 30th day of October, 1979, the Statement
of Claim was struck as being false, scandalous, frivolous and
vexatious and an abuse of process. Feener appealed this Order
and the appeal was dismissed by Order dated the 21st day of
January, 1980.
On the 21st of January, 1981, the Municipality
commenced a proceeding against Feener and his wife, Helen Feener,
requesting an Order putting the Municipality in possession
of the property. An Order of Judge Clements granting this
relief and ordering the Feeners to remove themselves from the
property is dated the 2nd day of June, 1981.
The action of which this proceeding forms a part
was commenced by Helen Feener on March 2nd, 1981, against Her
Majesty the Queen and the Municipality of -Lunenburg. The
Plaintiff claimedthat Her Majesty illegally entered her home
and destroyed persona1 property and alleged that her dower
interest could not have been disposed of at the time of the
sheriff's sale. She sought "justice" and the sum of five million
dollars damages. I was advised by counsel at the hearing and
the record indicates that the Plaintiff retained the services
of a solicitor in Halifax, Gary Manthorne, and that in August
of 1981, an amended statement of Claim was filed on behalf
of the Plaintiff which alleged that the Plaintiff had been
deprived of the use and enjoyment of her land, that the Defendant
had damaged items of property owned by the Plaintiff and that
the Plaintiff was unjustly enriched. The Municipality applied
before Judge Clements for an Order striking the Statement of
Claim pursuant to Civil Procedure Rule 14.25. The learned
judge dismissed this application by judgment dated September
10, 1981. Judge Clements referred to Civil Procedure Rule
14.25(2) and ignored the affidavit evidence filed on behalf
of the application and found that upon reviewing the pleading
alone there appeared to be a reasonable cause of action.
In January of 1983, John Feener, acting as counsel
for his wife, gave notice of his intention to amend the Statement
of Claim in the proceeding SBW 0556 apparently with a view
to ascertaining the interest of the Plaintiff in the property
having regard to the Matrimonial Property Act which had become
law since the date of the sheriff's sale.
On March loth, 1983, Feener, representing his wife,
and a solicitor for the Municipality appeared before Judge
Clements. A transcript of what took place is attached to the
Affidavit of Mr. Romney. Apparently, an application was made
for security for costs, an application by the Plaintiff to
amend the Statement of Claim in accordance with the notice
to which I have made reference and an application to strike
the Statement of Claim as being frivolous and vexatious. This
matter was apparently put over until May of 1983, but Mr. Romney,
in his submissions to me, made reference to Judge Clements'
comments on March loth, 1983, and in particular the following:
Now you're getting into argument,
this goes to this whole question of
whether or not you are entitled to
amend your Statement of Claim and whether
or not it should be struck out as having
been indicated on, or whether it should
be struck out as being frivolous and
vexatious. So that's the issue that's
addressed to me in the notice given
by Miss Scott and that's the issue
too that will be dealt with by the
Municipality.
Mr. Romney referred to that comment in an attempt
to rebut the suggestion by Mr. Williams, on behalf of this
Plaintiff, that the subsequent application to strike the
Statement of Claim was an application on behalf of Her Majesty
the Queen only.
In his decision, Judge Clements made reference
to the multiplicity of actions before Mr. Justice Burchell
and Mr. Justice Richard and finally the appeals to the Appeal
Division. He concluded that. the whole basis of all these actions
dealt with the alleged illegality of the sheriff's sale. The
learned judge concludes by saying:
And as I say, that really having been
the whole basis of all these actions
I have no choice but to decline to
allow the amendment to be made and
I am further going to grant the request
of the Crown that the original action
be struck out and disallowed. The
Defendants in this case will have their
costs to be taxed.
After rendering the decision, the transcript, which
is exhibit "L" .to Mr. Romney's Affidavit, set out further
exchange between the court and Mr. Feener and it is clear to
me as I read the comments of the late judge that he intended
to strike all of the allegations in the Statement of Claim
including those which were the subject of amendment by
Mr. Manthorne. It was Judge Clements' position that any claims
that were to be advanced by the wife should have be.en advanced
with the earlier actions and he specifically made reference to the four or five actions already commenced on behalf of the Feener family. He stated that: ...it's against. public policy for a lot of these matters to be litigated and re-litigated, an this is a prime example. Following the hearing before Judge Clements, there
is the Order granted on May lath, 1983, which is the hub of
the controversy with respect to the proceeding before me.
Accordingly, I will set forth the complete text of the Order:
UPON IT APPEARING that the Plaintiff
has made an Application to amend the
Statement of Claim;
AND UPON IT APPEARING that the Defendant Her Majesty the Queen has made an Application to strike out the Plaintiff 's Statement of Claim; AND UPON THESE APPLICATIONS being
heard before the Honourable Mr. Justice
Lester L. Clements at the Court House
in Lunenburg, on the 10th day of May,
A.D., 1983;
AND UPON John Lloyd Feener having
been heard on behalf of the Plaintiff;
AND UPON HEARING Gregory Evans
on behalf of the Defendant, Her Majesty
the Queen;
AND UPON HEARING G. F., Philip Romney, on behalf of the Defendant, the Municipality of the District of Lunenburg; IT IS ORDERED that the Plaintiff's
Application to amend the Statement
of Claim be dismissed;
IT IS FURTaW ORDERED that the
Plaintiff's Statement of Claim be struck
pursuant to Civil Procedure Rule 14.25
and IT IS FUR= ORDERED that both
Defendants shall have their costs to
be taxed against the Plaintiff.
The Plaintiff appealed this Order and by Notice
of Appeal dated the 15th day of June, 1983, the following grounds
are set forth:
(1) That the Plaintiff had a right
to Amend the Statement of Claim
( 2 ) That the Court file did not s h w an Application filed by Her Majesty the Queen, To strike out the Plaintiff's Statement of Claim, And that such an Application, Would not apply to the Defendant the Municipality for the District of Lunenburg. ( 3 ) That the Honourable Mr. Justice L. L. Clements, had allready dealt
with an Application filed by the
Defendant the Municipality for the
District of Lunenburg, dated September
1st. A.D. 1981. To strike out the
Plaintiff's Statement of Claim, pursuant
to Civil Procedure Rule 14.25, And
in Mr. Justice L. L. Clements Decision
dated September, 10th. A.D. 1981, Mr.
Justice L. L. Clements dismissed the
Application, And rewarded the Plaintiff
Her Costs, Which shall be costs in
the cause.
(4) That Civil Procedure Rule 14.25,
was not in argument before Justice
L. L. Clements, in Chambers on Hay 10th. A.D. 1983, And that the Court didnot hear Gregory Evens on behalf of the Defendant Her Majesty The Queen, as the Order states. ( 5 ) That the Order of the Honourable Mr. Justice L. L. Clements, dated Uay 18th. A.D. 1983, is in Error, And a miscarriage of Justice. AND TAKE NOTICE, that the Appellant requests that the Order Appealed from be ( Rescinded as follows, That the Appellant be allowed to Amend the Statement Of Claim, And that the Hatter be set down for Trial. It is to be noted that grounds 2 and 3 are included in the
submissions made by Mr. Williams to me on behalf of the
Plaintiff.
The judgment of the Appeal Court is dated December
8th, 1983. Chief Justice MacKeigan began his judgment as
follows : This is, I hope, the last of a long
series of hopeless and inevitably
unsuccessful legal proceedings launched
by John L. Peener and/or by his wife,
Helen, in the County Court, the Supreme
Court and the Federal Court of Canada
against the Crown, the Attorney General
of Nova Scotia, the municipality of
the District of Lunenburg and. other
defendants. including the sheriff of
Lunenburg County.
His Lordship referred to other actions including the decision
of Mr. Justice Burchell dated April 22nd, 1980, holding that
there was no impropriety or illegality with respect to the
sale and the decision of Mr. Justice Richard which dismissed
an action by Mr. and Mrs. Feener alleging conspiracy to defraud
by the sheriff and others. The judgment of Mr. Justice Richard
was appealed and the Appeal Division confirmed Richard, J.'s
decision that the action was clearly frivolous or vexatious
and an abuse of the process of the Court. Chief Justice
MacKelgan, as he then was, had the following to say with respect
to the application to strike the Statement of Claim.
He granted the Crown's motion to
strike out the statement of claim.
He correctly considered that this was
just another attempt to question the
legality of the sheriff's sale and
was thus vexatious, frivolous and an
abuse of process.
From the date of that decision,nothing transpired
until Mr. Williams, on behalf of the Plaintiff, filed Notice
of Trial in January of 1988. This prompted the application
before me.
It is the position of the Plaintiff, as I understand
it, that because Judge Clements, in his decision of September
loth, 1981, had denied the application by the Municipality
to strike the Statement of Claim on the grounds it was false
and frivolous, that the only matters before the learned judge
in May of 1983 was the application by the Defendants for security
for costs and the application by the Crown to strike out the
Statement of Claim as it relates to the Crown only.
If one gives a literal interpretation to the Order
of May lath, 1983, the reference to the "Plaintiff's Statement
of Claim" in the last paragraph must refer to the claims advanced
against both Defendants. If it was only intended to strike
the Statement of Claim as it related to Her Majesty, one would
expect that this could have been specified in the Order.
The Order provided that both Defendants would recover
costs. The solicitor for the Applicant says that this was
because the Plaintiff failed in her application to amend her
Statement of Claim. On the other hand, is it not significant
that the provision with respect to costs was contained in the
same sentence that dealt with the striking of the Statement
of Claim?
The Order should have provided for a dismissal
of the action against both Defendants. If there is any doubt
about the meaning of the Order, the ambiguity should be resolved
i n f a v o r of t h e p l a i n t i f f because P l a i n t i f f i s more s e r i o u s t h a n it i s t o t h e M u n i c i p a l i t y . a c t i o n would be e f f e c t i v e l y concluded. At t ached t o M r . Romney's i s a t r a n s c r i p t of t h e h e a r i n g 1 0 t h . 1983, from which i n s i g h t can be o b t a i n e d a s t o t h e r e a s o n f o r t h e O r d e r , o f May l a t h , 1983. t h e o p i n i o n t h a t t h e a c t i o n by wrongful behav iour of S h e r i f f s a l e and t h a t m a t t e r had been J u s t i c e B u r c h e l l o r t h e d e c i s i o n f i n a l l y t h e d e c i s i o n of t h e Appeal a f t e r t h e j u d g e ' s d e c i s i o n on t h e f i r s t mot ion t o s t r i k e ) . The l e a r n e d judge r e j e c t e d P l a i n t i f f t o t h e e f f e c t t h a t M r s . on t h e i n v a l i d i t y of t h e s a l e . say t h a t . t h e P l a i n t i f f , el en matter of t h e dower i n t e r e s t a t t h e t i m e of on t h e ground t h a t t h e l i t i g a n t must a c t i o n a t t h e same t i m e . I t made r e f e r e n c e t o t h e f a c t t h a t t h e M u n i c i p a l i t y of t o g e t h e r w i t h t h e Crown and Helen whole t h i n g t h r o u g h o u t " . H e goes on t o s ta te : The plea of res j u d i c a t a a p p l i e d except i n s p e c i a l cases n o t t h e consequence t o t h e H e r A f f i d a v i t a s e x h i b i t "L" b e f o r e Judge Clements on May The l e a r n e d judge was of M r s . Feene r had a s a b a s e t h e S u r e t t e i n t h e conduc t of t h e s e t t l e d by t h e d e c i s i o n of M r . of M r . J u s t i c e R i c h a r d and D i v i s i o n (which came down t h e submiss ions of t h e F e e n e r ' s a c t i o n was n o t based The l e a r n e d judge g o e s on t o F e e n e r , s h o u l d have r a i s e d t h e t h e i n i t i a l a c t i o n b r i n g fo rward h i s e n t i r e s h o u l d be n o t e d t h a t t h e judge Lunenburg, F e e n e r , " w e r e p r i v y t o t h i s o n l y t o p o i n t s
upon which t h e cour t s required by t h e p a r t i e s opinion and pronounce t o every point which t o t h e subjec t of l i t i g a t i o n and which t h e pa r t i e s , exerc is ing d i l igence , might have , brought a t t h e t i m e . This doc t r ine i s founded upon public pol icy i n t e r e s t s of t h e publ ic end t o l i t i g a t i o n and hardship of t h e individual vexed f o r t he same cause. t h e P l a i n t i f f s frame t h e i r ac t ion under t h e heading of conspiracy, l o s s of dower, unjust whatever, the simple f a c t remains t h e P l a in t i f f claims ac t ions , and a l l o ther a c t i ons commenced by one o r t h e other P l a i n t i f f s , is founded i l l e g a l a c t of wrongful of t h e i r property a t Whynqtt Settlement, underlying both ac is t h e jud ic ia l s a l e Judge Clements c o n c l u d e s h i s remarks w i t h t h e s e comments: ... I am fu r the r reques t of t h e Crown a c t i on be s t ruck out The Defendants i n t h i s c a se w i l l have t h e i r cos t s t o be added ) I t s h o u l d be n o t e d t h a t t h e t h e "S ta t emen t o f Claim" b e i n g be s t r u c k . T h e r e i s o n l y one d e f e n d a n t s and a s I r e a d t h e it i s c l e a r t o m e t h a t h e i n t e n d e d be s t r u c k a g a i n s t bo th d e f e n d a n t s . by t h e i n t e r v e n i n g d e c i s i o n o f was ac tua l l y t o form an a judgment, but properly belonged reasonable forward a s being i n t he t he r e be an t o prevent t h e t w i c e being ... Whether negligence, enrichment o r t h a t i n a l l these o r both t h e on t he a l leged deprivat ion . t . i . o ns undoubtedly going t o g ran t t h e t h a t t h e o r i g i n a l and disallowed. taxed. ( e m p h a s i s judge d i d n ' t make r e f e r e n c e t o s t r u c k b u t t h a t t h e " a c t i o n " a c t i o n which is a g a i n s t two r emarks of t h e l e a r n e d judge , t h e S t a t e m e n t of Claim t o Whether he was i n f l u e n c e d t h e Appeal D l v i s i o n o r w h e t h e r
I agree with the reasons advanced by the trial judge for striking
the action is immaterial. This is not an appeal from the trial
judge's decision. That appeal was heard by the Appeal Division
and was the subject of the decision dated December 8th, 1983.
The sole purpose of referring to the learned judge's reasons
is an attempt to resolve any ambiguity which may exist as a
result of the wording of the Order of May lath, 1983.
In any event, even if I had any lingering doubt
about the meaning of the Order or the effect of the Order having
regard to .thep revious decision of September, 1981, the issue
before me has been decided by the decision of the Appeal Division
dated December 8th, 1.983.
The Notice of Appeal from the Order of May lath,
1983, set out the grounds for appeal which are quoted earlier
in this judgment. Included in the grounds are the very issues
raised before me, i.e. that this application to strike was
filed by Her Majesty and would not apply to the Municipality
and that Judge Clements had already dealt with the application
by the Municipality in September, 1981. The Appeal Division
dismissed the appeal and in doing so agreed with Judge Clements
that the action was another attempt to question the legality
of the sheriff's sale and was vexatious and an abuse of process.
The issues before me were settled by the Appeal
Division in December, 1983. The .application is dismissed.
As the proceeding stands with the Statement of Claim struck,
the Order should provide that the action do stand dismissed
out of this Honourable Court.
The Defendant Municipality shall recover its costs
of this application for the Plaintiff.
Halifax, Nova Scotia
April 19, 1988
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.