Sep 10, 2015

Nova Scotia Civil Procedure Rules annotation of Rule 13.03

Bank of Montreal v. Ross, 2011 NSSC 359 (CanLII)
Rule 13.03 – Summary judgment on pleadings
The plaintiff (BMO) sued the defendants to enforce promissory notes securing their company's debt. The defendants (in part) claimed BMO improperly instigated receivership proceedings. BMO moved for summary judgment on the pleadings and/or evidence, and to have the defence dismissed. The defendants argued their lawyer had minimal notice of, and that BMO made improper representations at, the hearing of the receivership motion. Held, motion for summary judgment on the pleadings granted. The portions of the defence and counterclaim that impugn the appointment and actions of the receiver, and those that criticize the reasonableness of calling in the debt are struck. There is no basis in law for them. While the attack on the appointment of a receiver isn't an issue of res judicata (because the decision on receivership was an interim, not final, decision and was made ex parte) or estoppel by conduct, it would be an abuse of process (Rule 88) to allow them to make allegations they could and should have made many months ago in the context of the receivership proceedings. They never raised an issue at that time, nor did they appeal the receivership order.