Barthe v. Nat. Bk. (2015), 359 N.S.R.(2d) 258 (CA);
1133 A.P.R. 258
MLB headnote and full text
Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.025
National Bank Financial Ltd. (appellant/respondent by cross-appeal) v. The Estate of the Late Michael Barthe, as represented by his Executrix Barbara Barthe (respondent/appellant by cross-appeal)
Craig Dunham, Lowell Weir and Blackwood Holdings Incorporated (appellants/respondents by cross-appeal) v. National Bank Financial Limited (respondent/appellant by cross- appeal)
Calvin Wadden (appellant) v. National Bank Financial Limited, National Bank of Canada, Lowell R. Weir, Blackwood Holdings Incorporated, Carol McLaughlin-Weir, Craig Anthony Dunham, The Estate of the Late Michael Barthe (respondents)
(CA 420715; CA 424848; CA 424527; 2015 NSCA 47)
Indexed As: Barthe v. National Bank Financial Ltd.
Nova Scotia Court of Appeal
MacDonald, C.J.N.S., Saunders and Oland, JJ.A.
May 14, 2015.
Summary:
A complex series of multi-party actions arose out of the collapse of a publicly-traded technology company, Knowledge House Inc. (KHI). National Bank Financial Ltd. (NBFL) started a number of actions against clients and former clients for unpaid margin debt arising from the collapse. Some of NBFL clients defended those claims by alleging that they had been the victims of a conspiracy by NBFL’s employee (Clarke) and others to manipulate KHI share prices. NBFL issued a statement of claim, in what became the main action, against Potter (a lawyer), Clarke, and others, alleging that they conspired to manipulate the price of KHI shares and that the conspiracy resulted in a fraud being committed against NBFL. Several of the respondents in the main action started actions against NBFL, including Dunham, the Weirs, Blackwood Holdings (a Weir company), Barthe and Wadden (collectively referred to as the “Dunlop clients” as they were all represented by a lawyer named Dunlop). Wadden commenced a separate action against BMO Nesbitt Burns Inc. respecting the handling of his margin accounts. By the time of trial, the only remaining parties were the Dunlop clients, NBFL and its parent the National Bank of Canada, and BMO Nesbitt Burns Inc.
The Nova Scotia Supreme Court, in a judgment reported (2013), 333 N.S.R.(2d) 60; 1055 A.P.R. 60, allowed the claims by Dunham, the Weirs and Blackwood Holdings and assessed damages, including punitive damages. Barthe’s claim was allowed in part, for the time up to when he became aware of the stock manipulation scheme. The court dismissed Wadden’s claim against NBFL and BMO Nesbitt Burns Inc. considering him to be an insider who actively participated in the stock manipulation scheme. NBFL’s third party claim against Wadden was allowed.
The Nova Scotia Supreme Court, in a judgment reported (2014), 348 N.S.R.(2d) 58; 1100 A.P.R. 58, determined the costs issues. NBFL appealed the judge’s ruling in the Barthe action. Barthe’s Estate cross-appealed. NBFL moved for a stay of execution of the monetary judgment pending appeal, claiming that if the judgment was paid and its appeal succeeded there was a risk that the payment could not be recovered.
The Nova Scotia Court of Appeal, per Fichaud, J.A., in a judgment reported (2013), 336 N.S.R.(2d) 290; 1063 A.P.R. 290, granted the stay pending the appeal.
The Nova Scotia Court of Appeal allowed the appeals in part. First, NBFL’s egregious conduct throughout the litigation constituted so serious an abuse of process that the court struck all of NBFL’s pleadings and permanently stayed all of its claims, cross-claims, counter-claims and defences. NBFL was ordered to pay each of the four appellants $750,000 in punitive damages and solicitor-client costs on the appeal. Where NBFL obtained judgment for unpaid margin debt, those claims were vitiated. The court overturned the trial judge’s finding that Barthe ratified the fraudulent scheme to manipulate share prices.
Brokers – Topic 2665
Liability of broker to principal – Stockbrokers – Ratification of stockbroker’s activity by client – A complex series of multi-party actions arose out of the collapse of a publicly traded technology company, Knowledge House Inc. (KHI), including a claim by parties represented by Dunlop (the “Dunlop clients”), against National Bank Financial Ltd. (NBFL) – The Dunlop clients, which included Dunham, the Weirs, Wadden and Barthe, alleged that NBFL failed to adequately supervise its employee (Clarke), a broker/investment advisor, who engaged in market manipulation respecting KHI, which resulted in their losses – NBFL raised the defence of ratification, arguing that the Dunlop clients’ failure to complain about the transactions in their respective accounts meant that they acquiesced, and therefore ratified, the transactions – The Dunlop clients argued that they could not ratify that of which they were unaware – The trial judge held that Clarke’s market manipulation was a material circumstance that the Dunlop clients would have had to have been aware of in order to find that acquiescence amounted to ratification – Dunham and the Weirs were not aware of Clarke’s market manipulation activities – That defeated NBFL’s ratification argument with respect to their claims – However, Barthe was found to have ratified the share price manipulation prior to his second advance of funds – The Nova Scotia Court of Appeal held that the trial judge erred in finding that Barthe ratified Clarke’s activities – The finding that Barthe “knew” of the true state of affairs was inconsistent with the evidence – Further, the trial judge misapplied the legal test for ratification – See paragraphs 354 to 365.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – [See
Practice – Topic 9025
].
Courts – Topic 2015
Jurisdiction – General principles – Controlling abuse of its process – [See
Courts – Topic 6043]
.
Courts – Topic 2015
Jurisdiction – General principles – Controlling abuse of its process – A complex series of multi-party actions arose out of the collapse of a publicly-traded technology company (KHI) – National Bank Financial Ltd. (NBFL) started a number of actions against clients and former clients for unpaid margin debt arising from the collapse – Some of NBFL clients defended those claims by alleging that they had been the victims of a conspiracy by NBFL’s employee (Clarke) and others to manipulate KHI share prices – NBFL issued a statement of claim (main action) against Potter (a lawyer), Clarke, and others, alleging that they conspired to manipulate the price of KHI shares and that the conspiracy resulted in a fraud being committed against NBFL – Several of the respondents in the main action started actions against NBFL, alleging that NBFL was liable for failing to adequately supervise Clarke – NBFL and the Securities Commission had executed a settlement agreement in 2005, which was not disclosed to the other parties or the court until December 2012 because a negotiated escrow agreement precluded disclosure – In the agreement, NBFL admitted that it failed to adequately supervise Clarke, which resulted in the failure to detect his pattern of manipulative trading – Notwithstanding that admission, NBFL, in the litigation, continued to deny responsibility for Clarke’s actions, but did discontinue its claims against Clarke (without explanation) – The trial judge allowed the claims by Dunham, the Weirs and Blackwood Holdings and assessed damages, including punitive damages – Barthe’s claim was allowed in part, for the time up to when he became aware of the stock manipulation scheme – The trial judge dismissed Wadden’s claim against NBFL and BMO Nesbitt Burns Inc. considering him to be an insider who actively participated in the stock manipulation scheme – NBFL’s third party claim against Wadden was allowed – The Nova Scotia Court of Appeal, finding NBFL guilty of abuse of process, held that the trial judge should have struck all of NBFL’s pleadings and permanently stayed all of its claims and defences – The four appellants were each awarded, inter alia, $750,000 punitive damages and solicitor-client costs on the appeal – NBFL’s actions throughout the proceedings were so serious as to require extreme, unequivocal and permanent sanctions – “For more than 10 years the Bank maintained a position and asserted facts in its pleadings which it knew to be false. It deliberately set out on a path to hide the truth from the Court and opposing parties. In doing so it deprived the adjudicative process of highly relevant and critically important facts. … the Bank’s actions caused considerable harm and massive expense to the other litigants who found themselves caught up in more than a decade of needless litigation which should have otherwise been resolved years ago. … [There was] the repeated pattern of misconduct by the Bank throughout this interminable litigation coupled with an absence of any attempt by the Bank to apologize, make amends or change its ways. … Because of the Bank’s egregious misconduct the appellants were forced to endure more than 10 years of unwarranted litigation to say nothing of the monumental expense, inconvenience, delays, frustration and waste of time that entailed.” – See paragraphs 8, 9, 242 to 353, 469.
Courts – Topic 6043
Provincial courts – Nova Scotia – Court of Appeal – Inherent jurisdiction – At issue was a Court of Appeal’s authority to either strike a party’s pleadings or stay the proceedings where the court determined that the trial judge erred in not doing so based on the party’s egregious abuse of process in the court proceedings – The Nova Scotia Court of Appeal stated that “s. 41 of the Judicature Act and CPRs [Civil Procedure Rules] 88 and 90 provide us with the clear authority to control an abuse of the Court’s own process and strike pleadings or stay proceedings if the Court determines that a party’s conduct constitutes an abuse of process” – The court also held that absent statutory authority, the court retained inherent jurisdiction to grant the same remedies for abuse of process – The court discussed when it should strike pleadings or grant a stay – See paragraphs 176 to 177, 181 to 241.
Damage Awards – Topic 2027.5
Exemplary or punitive damages – Outrageous conduct – [See second
Courts – Topic 2015
].
Practice – Topic 2239
Pleadings – Striking out pleadings – Grounds – Abuse of process or delay – [See second
Courts – Topic 2015
and
Courts – Topic 6043]
.
Practice – Topic 8327.2
Costs – Appeals – Costs of appeal – Solicitor and client costs – [See second
Courts – Topic 2015
].
Practice – Topic 9025
Appeals – Reasons for judgment on appeal – Single set of reasons for multiple appeals – A complex series of multi-party actions arose out of the collapse of a publicly-traded technology company – Three actions were jointly tried by the trial judge, with a single set of reasons – Appeals were brought from the three jointly tried actions and heard on consecutive days by the Court of Appeal – The Nova Scotia Court of Appeal issued a single set of reasons for all three appeals – The court stated that the customary factors considered by judges exercising their discretion to issue one set of reasons included “common underlying facts; similar issues; the same or similar parties; extensive involvement of the parties in the various respective trials or appeals; and jointly (or consecutively) heard proceedings in the court below. So long as issuing one set of reasons is not prejudicial to the parties, it is a convenient, efficient and acceptable use of judicial resources to do so. Applying those principles and factors to this case, I am satisfied that a single set of reasons is the proper approach to take in disposing of all three appeals. They all arise from the same set of facts. They all involve the same or similar parties and engage the same or similar issues. All matters were tried before the same judge who had also case managed the various proceedings which ultimately led to the ‘joint’ trial. The three appeals were presented as a ‘trilogy’ heard by the same panel, on consecutive days. There is nothing in the issuance of one set of reasons to dispose of all three appeals which would be prejudicial to any of the parties on appeal. Each will clearly understand the basis for our decision.” – See paragraphs 120 to 121.
Cases Noticed:
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Imperial Oil v. Jacques et al. (2014), 463 N.R. 170; 2014 SCC 66, refd to. [para. 106].
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Lundbeck Canada Inc. v. Canada (Minister of Health) et al. (2010), 409 N.R. 322; 2010 FCA 320, refd to. [para. 108].
Ramnauth et al. v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 239; 2004 FC 233, refd to. [para. 111].
R. v. Tran (T.T.) et al. (1995), 66 B.C.A.C. 60; 108 W.A.C. 60; 1995 CarswellBC 1283 (C.A.), refd to. [para. 112].
R. v. Nguyen (T.B.) et al. (1995), 66 B.C.A.C. 50; 108 W.A.C. 50 (C.A.), refd to. [para. 113].
1392644 Ontario Inc. v. Minister of National Revenue (2013), 444 N.R. 163; 2013 FCA 85, refd to. [para. 114].
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Zadworny v. Manitoba (Attorney General) et al., [2011] Man.R.(2d) Uned. 59; 2011 MBCA 66, refd to. [para. 115].
Younis v. State Farm Mutual Automobile Insurance Co. et al. (2012), 300 O.A.C. 180; 2012 ONCA 836, refd to. [para. 116].
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F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 118].
British Columbia (Attorney General) v. Malik et al. (2011), 414 N.R. 332; 303 B.C.A.C. 1; 512 W.A.C. 1; 2011 SCC 18, refd to. [para. 139].
Petrelli v. Lindell Beach Holiday Resort Ltd. (2011), 310 B.C.A.C. 196; 526 W.A.C. 196; 2011 BCCA 367, refd to. [para. 140].
Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 2014 SCC 7, refd to. [para. 148].
Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 151].
McPhee v. Gwynne-Timothy (2005), 232 N.S.R.(2d) 175; 737 A.P.R. 175; 2005 NSCA 80, refd to. [para. 151].
Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 151].
Richard v. Time Inc. et al. (2012), 427 N.R. 203; 2012 SCC 8, refd to. [para. 151].
Reid v. Halifax Regional School Board (2006), 243 N.S.R.(2d) 62; 772 A.P.R. 62; 2006 NSCA 35, refd to. [para. 158].
Vogler v. Szendroi (2011), 302 N.S.R.(2d) 323; 955 A.P.R. 323; 2011 NSCA 37, refd to. [para. 158].
Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, refd to. [para. 172].
Orlandello v. Nova Scotia (Attorney General) (2005), 234 N.S.R.(2d) 247; 745 A.P.R. 247; 2005 NSCA 98, refd to. [para. 177].
Sezerman v. Youle (1996), 150 N.S.R.(2d) 161; 436 A.P.R. 161 (C.A.), refd to. [para. 177].
United States of America v. Shulman (2001), 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, refd to. [para. 178].
United States of America v. Cobb et al. (2001), 267 N.R. 203; 145 O.A.C. 3; 2001 SCC 19, refd to. [para. 178].
Cunningham v. Lilles et al. (2010), 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 178].
Knowledge House Inc. et al. v. Stewart McKelvey Stirling Scales et al. (2007), 260 N.S.R.(2d) 64; 831 A.P.R. 64; 2007 NSCA 113, refd to. [para. 181].
Tupper v. Nova Scotia (Attorney General) et al. (2007), 259 N.S.R.(2d) 220; 828 A.P.R. 220; 2007 NSSC 232, affd. (2008), 265 N.S.R.(2d) 135; 848 A.P.R. 135; 2008 NSCA 44, refd to. [para. 181].
Cook v. Nova Scotia (Attorney General) et al., [2005] N.S.R.(2d) Uned. 4; 2005 NSCA 23, refd to. [para. 181].
Grewal v. Nijjer et al., [2011] B.C.A.C. Uned. 153; 2011 BCCA 505, refd to. [para. 182].
Homer Estate et al. v. Eurocopter S.A. et al. (2003), 180 B.C.A.C. 316; 297 W.A.C. 316; 2003 BCCA 229, refd to. [para. 183].
Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), refd to. [para. 184].
Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 2009 ONCA 85, refd to. [para. 185].
Purcaru v. Purcaru (2010), 265 O.A.C. 121; 2010 ONCA 92, refd to. [para. 186].
Summers v. Fairclough Homes Ltd., 2012 UKSC 26, refd to. [para. 188].
Global Petroleum Corp. v. C.B.I. Industries Inc., 1997 NSCA 42, refd to. [para. 191].
Canada (Attorney General) v. Maritime Harbours Society et al. (2003), 212 N.S.R.(2d) 140; 665 A.P.R. 140; 2003 NSSC 26, refd to. [para. 192].
Canada (Attorney General) v. Marineserve.MG Inc. – see Canada (Attorney General) v. Maritime Harbours Society et al.
Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 194].
R. v. O’Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 195].
R. v. Mahalingan (R.) (2008), 381 N.R. 199; 243 O.A.C. 199; 2008 SCC 63, refd to. [para. 205].
Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 207].
Babavic v. Babowech, [1993] B.C.J. No. 1802 (S.C.), refd to. [para. 208].
Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 209].
Moulton Contracting Ltd. v. British Columbia et al. (2013), 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 211].
R. v. Anderson (F.) (2014), 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 212].
Mystar Holdings Ltd. et al. v. 247037 Alberta Ltd. (2009), 483 A.R. 12; 2009 ABQB 480, refd to. [para. 213].
First Majestic Silver Corp. et al. v. Santos et al. (2012), 315 B.C.A.C. 85; 535 W.A.C. 85; 2012 BCCA 5, refd to. [para. 213].
Pepper’s Produce Ltd. v. Medallion Realty Ltd. et al. (2012), 324 B.C.A.C. 132; 551 W.A.C. 132; 2012 BCCA 247, refd to. [para. 213].
Deltaport Construction Ltd. v. Vancouver Fraser Port Authority, [2013] B.C.T.C. Uned. 1705; 2013 BCSC 1705, refd to. [para. 213].
Walsh v. Mobil Oil Canada et al. (2013), 553 A.R. 360; 583 W.A.C. 360; 2013 ABCA 238, refd to. [para. 213].
R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 219].
R. v. Nixon (O.) (2011), 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 220].
R. v. Babos (A.) (2014), 454 N.R. 86; 2014 SCC 16, refd to. [para. 220].
Canada (Attorney General) v. Khadr (2011), 280 O.A.C. 210; 2011 ONCA 358, refd to. [para. 221].
United States of America v. Khadr – see Canada (Attorney General) v. Khadr.
Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 222].
Aecon Buildings v. Brampton (City) et al., [2010] O.A.C. Uned. 727; 2010 ONCA 898, leave to appeal denied (2011), 425 N.R. 400 (S.C.C.), refd to. [para. 223].
Autosurvey Inc. v. Prevost et al., [2005] O.T.C. 883 (Sup. Ct.), refd to. [para. 226].
Clark v. Complaints Inquiry Committee (2012), 524 A.R. 322; 545 W.A.C. 322; 2012 ABCA 152, refd to. [para. 227].
R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 228].
Arrow Nominees Inc. v. Blackledge, [2000] EWCA Civ 200, refd to. [para. 229].
R. v. Hinse (R.), [1995] 4 S.C.R. 597; 189 N.R. 321, refd to. [para. 231].
Brown v. Cape Breton (Regional Municipality) (2011), 302 N.S.R.(2d) 84; 955 A.P.R. 84; 2011 NSCA 32, refd to. [para. 259].
Dunham, Re (2005), 231 N.S.R.(2d) 235; 733 A.P.R. 235; 2005 NSSC 57 (Bktcy. Reg.), refd to. [para. 262].
Hill v. Gordon-Daly Grenadier Securities et al. (2001), 152 O.A.C. 40; 56 O.R.(3d) 388 (Div. Ct.), affing. [2001] O.T.C. Uned. 546; 5 C.P.C.(5th) 389 (Sup. Ct.), refd to. [para. 262].
Moyes v. Fortune Financial Corp. et al., [2002] O.T.C. 318; 22 C.P.C.(5th) 154 (Sup. Ct.), refd to. [para. 263].
Clarke et al. v. Yorkton Securities Inc. et al., [2003] O.T.C. 1073; 46 C.P.C.(5th) 294 (Sup. Ct.), refd to. [para. 263].
Quadrangle Holdings Ltd. v. Coady et al. (2015), 355 N.S.R.(2d) 324; 1123 A.P.R. 324; 2015 NSCA 13, refd to. [para. 281].
Chudy v. Merchant Law Group et al. (2008), 262 B.C.A.C. 210; 441 W.A.C. 210; 2008 BCCA 484, leave to appeal denied (2009), 396 N.R. 399 (S.C.C.), refd to. [para. 281].
Canadian Bar Association v. British Columbia et al. (2008), 252 B.C.A.C. 76; 422 W.A.C. 76; 2008 BCCA 92, leave to appeal denied (2008), 390 N.R. 81; 274 B.C.A.C. 319; 463 W.A.C. 319 (S.C.C.), refd to. [para. 281].
Rieger et al. v. Burgess et al. (1988), 66 Sask.R. 1 (C.A.), leave to appeal denied [1988] S.C.C.A. No. 209, refd to. [para. 281].
Beals v. Saldanha et al. (2001), 148 O.A.C. 1; 54 O.R.(3d) 641 (C.A.), affd. (2003), 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 281].
Vilardell v. Dunham (2014), 463 N.R. 336; 375 D.L.R.(4th) 599; 2014 SCC 59, refd to. [para. 311].
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) – see Vilardell v. Dunham.
Connolly v. Walwyn Stodgell Cochran Murray Ltd. and Himmelman (1993), 121 N.S.R.(2d) 278; 335 A.P.R. 278 (C.A.), leave to appeal denied (1993), 162 N.R. 400 (S.C.C.), refd to. [para. 363].
Williamson v. Williams et al. (1997), 160 N.S.R.(2d) 106; 473 A.P.R. 106 (C.A.), leave to appeal denied (1997), 225 N.R. 240 (S.C.C.), refd to. [para. 363].
Blackburn v. Midland Walwyn Capital Inc. et al., [2003] O.T.C. 142 (Gen. Div.), affd. (2005), 195 O.A.C. 18 (C.A.), leave to appeal denied (2005), 347 N.R. 391 (S.C.C.), refd to. [para. 365].
Penner v. Yorkton Continental Securities Inc. and Buskell (1996), 183 A.R. 5 (Q.B.), refd to. [para. 377].
Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 395].
Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 2011 ONCA 460, refd to. [para. 395].
Whiten v. Pilot Insurance Co. et al. (2002), 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 438].
Fidler v. Sun Life Assurance Co. of Canada (2006), 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 438].
Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 438].
Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al., [1999] 3 S.C.R. 408; 247 N.R. 1; 250 A.R. 1; 213 W.A.C. 1, refd to. [para. 446].
3058354 Nova Scotia Co. v. On*Site Equipment Ltd. et al. (2011), 505 A.R. 289; 522 W.A.C. 289; 2011 ABCA 168, leave to appeal denied (2012), 434 N.R. 391 (S.C.C.), refd to. [para. 447].
Branco v. American Home Assurance Co. et al. (2013), 416 Sask.R. 77; 2013 SKQB 98, refd to. [para. 447].
Brown v. Metropolitan Authority et al. (1996), 150 N.S.R.(2d) 43; 436 A.P.R. 43 (C.A.), refd to. [para. 458].
Campbell v. Lienaux et al. (2001), 195 N.S.R.(2d) 220; 609 A.P.R. 220; 2001 NSSC 44, affd. in part (2002), 208 N.S.R.(2d) 277; 652 A.P.R. 277; 2002 NSCA 104, refd to. [para. 458].
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 458].
Winters v. Legal Services Society (B.C.), [1999] 3 S.C.R. 160; 244 N.R. 203; 128 B.C.A.C. 161; 208 W.A.C. 161, refd to. [para. 458].
Minas Basin Holdings Ltd. v. Bryant (P.) Enterprises Ltd. et al. (2010), 289 N.S.R.(2d) 26; 916 A.P.R. 26; 2010 NSCA 17, refd to. [para. 458].
Statutes Noticed:
Civil Procedure Rules (N.S.), rule 88.01(2) [para. 165]; rule 90.02(1) [para. 169]; rule 90.44(1) [para. 167]; rule 90.48 [para. 163].
Judicature Act, R.S.N.S. 1989, c. 240, sect. 41(e) [para. 157]; sect. 41(g) [para. 159]; sect. 45E [para. 160].
Rules of Court (N.S.) – see Civil Procedure Rules (N.S.).
Authors and Works Noticed:
Archibald, Todd L., and Echlin, Randall Scott, A Survey of Abuse of Process, in Annual Review of Civil Litigation 2007 (2007), p. 243 [para. 206].
Brown, Donald, Civil Appeals (2009 looseleaf), vol. 2, c. 13, p. 13:4120 [para. 119].
Groia, Joseph, and Hardie, Pamela, Securities Litigation and Enforcement (2nd Ed. 2012), p. 270 [para. 376].
van Kessel, Robert, Dispositions Without Trial (2nd Ed. 2007), pp. 625 [para. 193]; 629 [para. 198].
Counsel:
David G. Coles, Q.C., and Geoffrey J. Franklin, for National Bank Financial Ltd. and National Bank of Canada;
W. Dale Dunlop and Ian M. Gray, for the Estate of the Late Michael Barthe, Craig Anthony Dunham, Lowell R. Weir, and Blackwood Holdings Inc.;
Andrea Wadden, as agent for Calvin Wadden.
These appeals were heard on September 26 and 29-30, 2014, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.
On May 14, 2015, Saunders, J.A., delivered the following judgment for the Court of Appeal.
