Leeman v. Baine

Leeman v. Baine

The court exercised its discretion to decline to allow an indefinite stay due to the plaintiff's death, proceeded to consider the summary judgment motion, and granted summary judgment for Sears Canada Inc. because the unrefuted affidavit evidence established there was no genuine issue for trial under Rule 13.04.

Citation
2009 NSSC 311
Parties
Plaintiff: Christopher Leeman; Defendant: Russell Baine; Defendant: S.M.S. Modern Cleaning Services Inc.; Defendant: Sears Canada Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 September 2009
Procedural Posture
Civil Personal Injury (sexual Assault) / Motion for Summary Judgment (rule 13.04)
Outcome
Motion for summary judgment granted in favour of Sears Canada Inc.; claim against Sears dismissed
Legal Topics
Summary Judgment, Appointment of Representative Party, Stay on Death of Party, Survival of Actions Act
Source Language
English
Civil Procedure Torts Estate Law Evidence Summary Judgment Appointment of Representative Party Stay on Death of Party Survival of Actions Act

Case Brief

Summary, issues, holding and outcome

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Parties

Christopher Leeman

Plaintiff

Russell Baine

Defendant

S.M.S. Modern Cleaning Services Inc.

Defendant

Sears Canada Inc.

Defendant

Procedural Posture

Civil Personal Injury (sexual Assault) / Motion for Summary Judgment (rule 13.04)

Legal Issues

  1. 1 Whether the death of the plaintiff effects a stay of proceedings under Rule 35.11
  2. 2 Whether the court must or should appoint a representative for the deceased plaintiff under Rule 36.12 or s.7 of the Survival of Actions Act
  3. 3 Whether Sears Canada Inc. is entitled to summary judgment under Rule 13.04 given unrefuted affidavit evidence

Ratio Decidendi

The court exercised its discretion to decline to allow an indefinite stay due to the plaintiff's death, proceeded to consider the summary judgment motion, and granted summary judgment for Sears Canada Inc. because the unrefuted affidavit evidence established there was no genuine issue for trial under Rule 13.04.

Court Disposition

Motion for summary judgment granted in favour of Sears Canada Inc.; claim against Sears dismissed

Orders

  • Summary judgment granted for the Defendant Sears Canada Inc.
  • Statement of Claim against Sears Canada Inc. dismissed