Van de Wiel v. Werry

Van de Wiel v. Werry

The Court of Appeal held the chambers judge did not err: the van de Wiels demonstrated a prolonged pattern of wilful and deliberate evasion of discovery and court process justifying striking their defence under Rule 18.15, and the third party statement of claim against the Benjamins disclosed no arguable issue and lacked sufficient particularity, justifying summary judgment under Rule 13.01(a); the appeal was dismissed with costs.

Citation
2005 NSCA 131
Parties
Appellants: Anthony J. van de Wiel; Deborah van de Wiel; Respondents: Mervin Werry; Marguerite Werry; Third Parties: Frank Benjamin; Carol Benjamin; Third Party: Sell‑Tech Coastal Realty
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
19 October 2005
Procedural Posture
Civil Appeal / Appeal From Chambers Judge Orders Striking Defence and Granting Summary Judgment and Related Assessment Decision
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Discovery, Strike Defence Under Procedural Rule, Litigation Guardian, Misrepresentation, Pleadings Particularity
Source Language
English
Civil Procedure Contract Law Tort Real Property Professional Negligence Summary Judgment Discovery Strike Defence Under Procedural Rule +3 more

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Parties

Anthony J. van de Wiel; Deborah van de Wiel

Appellants

Mervin Werry; Marguerite Werry

Respondents

Frank Benjamin; Carol Benjamin

Third Parties

Sell‑Tech Coastal Realty

Third Party

Procedural Posture

Civil Appeal / Appeal From Chambers Judge Orders Striking Defence and Granting Summary Judgment and Related Assessment Decision

Legal Issues

  1. 1 Whether the chambers judge erred in striking the defence and granting summary judgment under Rule 18.15
  2. 2 Whether the chambers judge erred in granting summary judgment to third parties under Rule 13.01(a) for no arguable issue

Ratio Decidendi

The Court of Appeal held the chambers judge did not err: the van de Wiels demonstrated a prolonged pattern of wilful and deliberate evasion of discovery and court process justifying striking their defence under Rule 18.15, and the third party statement of claim against the Benjamins disclosed no arguable issue and lacked sufficient particularity, justifying summary judgment under Rule 13.01(a); the appeal was dismissed with costs.

Court Disposition

Appeal dismissed

Orders

  • Chambers judge orders affirmed: defence of Anthony J. and Deborah van de Wiel struck and summary judgment entered for Mervin and Marguerite Werry under Rule 18.15
  • Summary judgment entered for Frank and Carol Benjamin and Sell‑Tech Coastal Realty on the third party claim under Rule 13.01(a)