Fraser v. Westminer Canada Ltd.

Fraser v. Westminer Canada Ltd.

Because the evidence established that Mr. Fraser acted as agent and the loss belonged to Sumner Capital, necessity to join Sumner Capital as plaintiff follows; Rule 5.04 is the appropriate mechanism; prejudice to defendants is slight given existing disclosure; therefore Sumner Capital is to be added on specified conditions; tax gross-up issue will be deferred until after any successful appeal and taxation by Revenue Canada.

Citation
2003 NSSC 4
Parties
Plaintiffs: Sumner Fraser et al.; Defendants: Westminer Canada Limited et al.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 January 2003
Procedural Posture
Civil / Supplementary Decision on Motion to Add Party and Determination Whether to Address Tax Gross Up Now
Outcome
Motion to add Sumner Capital Corporation as a plaintiff granted on conditions; issue of income tax gross-up deferred.
Legal Topics
Rule 5.04, Rule 15.01, Joinder of Parties, Amendment, Limitation Period, Income Tax Gross Up, Assessment of Damages
Source Language
English
Civil Procedure Corporate Law Damages Taxation Agency Limitation of Actions Rule 5.04 Rule 15.01 +5 more

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Parties

Sumner Fraser et al.

Plaintiffs

Westminer Canada Limited et al.

Defendants

Procedural Posture

Civil / Supplementary Decision on Motion to Add Party and Determination Whether to Address Tax Gross Up Now

Legal Issues

  1. 1 Whether Sumner Capital Corporation should be added as a plaintiff under Rule 5.04 or Rule 15.01
  2. 2 Whether the court should determine taxation (income tax gross-up) on hypothetical damages now or defer until after appeal and Revenue Canada assessment
  3. 3 Whether the limitation period and prejudice to defendants bar joinder

Ratio Decidendi

Because the evidence established that Mr. Fraser acted as agent and the loss belonged to Sumner Capital, necessity to join Sumner Capital as plaintiff follows; Rule 5.04 is the appropriate mechanism; prejudice to defendants is slight given existing disclosure; therefore Sumner Capital is to be added on specified conditions; tax gross-up issue will be deferred until after any successful appeal and taxation by Revenue Canada.

Court Disposition

Motion to add Sumner Capital Corporation as a plaintiff granted on conditions; issue of income tax gross-up deferred.

Orders

  • Add Sumner Capital Corporation as a plaintiff in the action.
  • Sumner Capital Corporation must immediately disclose its 1992 financial statements.