Layes v. Layes, 2022 NSCA 48

Nova Scotia Court of Appeal Citation: Layes v. Layes , 2022 NSCA 48 Date: 20220609 Docket: CA 507283 Registry: Halifax Between: Kevin Layes and 3086779 Nova Scotia Limited Appellants v. Rose Ellen Layes Respondent Judges: Wood C.J.N.S., Farrar and Van den Eynden JJ.A.

Appeal Heard: June 9, 2022, in Halifax, Nova Scotia Written Release June 13, 2022 Held: Appeal dismissed with costs, per reasons for judgment by the Court Counsel: Robert Pineo, for the appellant Peter Rumscheidt, for the respondent By the Court (Orally): [ 1 ] The issue for this Court to decide is whether the appellants have identified any error in Justice Gregory Warner’s decision (reported 2021 NSSC 176 ) that would justify our intervention. [ 2 ] The lynchpin of the appellants’ appeal is the trial judge’s failure to find an abuse of process by relitigation. [ 3 ] With respect, we are unanimously of the view this ground of appeal and the remaining rounds of appeal which are tethered to the abuse of process argument are without merit. [ 4 ] Whether the doctrine of abuse of process by relitigation is applied is an exercise in discretion.

It leaves little room to argue anything but there has been an egregious error in the exercise of that discretion. Donald Lange in the text The Doctrine of Res Judicata in Canada (3rd ed) writes: Hamilton J.A., for the court, stated that, an appellant, who is denied the application of abuse of process by relitigation at trial, “has a higher threshold on appeal. He is seeking to overturn a decision in which he was denied a purely discretionary remedy.” In Sanofi- Aventis Canada Inc. v.

Novopharm Ltd. , Sexton J.A., for the majority, stated: “A decision to dismiss a proceeding as an abuse of process is a discretionary one. Such a decision will not be reversed on appeal unless there is an error of law or principle, or a failure to exercise the discretion judicially … .” (p. 192) [ 5 ] We adopt this as a correct statement of the law. Warner J. committed no such error.

To the contrary, his detailed and well- reasoned decision explains why he refused to apply the doctrine and reveals no error, let alone an egregious one. [ 6 ] As to the other grounds of appeal, Warner J.’s decision is supported by the evidence and the law he cites.

The appellants have not identified any error in his reasons. [ 7 ] The appeal is dismissed with costs to the respondent in the amount of $10,000.00, inclusive of disbursements. [ 8 ] The appellants shall prepare and file a Discharge of Mortgage discharging the Collateral Mortgage dated March 3, 2004 on the lands of the late John James Layes and Rose Ellen Layes by the close of business on June 20, 2022, failing which this Court will issue an order discharging the mortgage. Wood C.J.N.S. Farrar J.A.

Van den Eynden J.A.