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ABUSE OF LEGAL PROCEDURE OR PROCESS - False arrest or imprisonment - Defences - Lawful authority

Monday, August 17, 2020 @ 9:21 AM  


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Appeal by the plaintiff from the dismissal of his motion to strike paragraphs of the respondents’ statements of defence. The appellant was declared bankrupt by a court in the Netherlands prior to his move to Prince Edward Island. The respondent Breuker was appointed as the trustee in bankruptcy by the Netherlands court. Breuker retained the respondent Canadian trustee and lawyers to assist in enforcing the bankruptcy in Canada. In the bankruptcy proceeding, the Court of Appeal found a contempt order, pursuant to which the appellant had been arrested, was void ab initio. The appellant commenced the within claim for damages for false imprisonment. The statements of defence alleged the appellant’s arrest and imprisonment were lawful. The motions judge found issue estoppel was not established.

HELD: Appeal allowed. The motions judge correctly found that as the prior proceeding did not make any finding with respect to the tort of false imprisonment, cause of action estoppel was not made out. However, the motions judge conflated issue estoppel and cause of action estoppel and erred by failing to address issue estoppel. When the respondents averred that the appellant’s detention was authorized by the contempt order, they put in issue material facts and law that had already been decided conclusively in the prior proceeding given the finding the contempt order was void ab initio. The usual application of issue estoppel would not be unjust. The respondents could not advance the defence that the contempt order constituted lawful justification or authority. They could plead they acted on the contempt order believing it to be valid. Breuker was entitled to put into issue whether the other respondents acted outside the scope of their authority.

Heijs v. Breuker, [2020] P.E.I.J. No. 29, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., July 8, 2020. Digest No. TLD-August172020001