Sierra Forestry Inc. v. C & R Sterling Farm Ltd. et al., 2010 NSSC 154

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 26, 2009
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 154;(2010), 291 N.S.R.(2d) 83 (SC)

Sierra Forestry v. C&R Sterling Farm (2010), 291 N.S.R.(2d) 83 (SC);

    922 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MY.029

C & R Sterling Farm Limited, Richard Scott Sterling (applicants/defendants) v. Sierra Forestry Inc. (respondent/plaintiff)

(Hfx. No. 284601; 2010 NSSC 154)

Indexed As: Sierra Forestry Inc. v. C & R Sterling Farm Ltd. et al.

Nova Scotia Supreme Court

LeBlanc, J.

April 19, 2010.

Summary:

The plaintiff sued the defendants (a farm and the beneficial owner of all the shares, assets and undertakings of the farm) for damages for breach of a contract in which the plaintiff agreed to harvest timber and wood fibre from land owned by the farm. The plaintiff obtained an attachment order against the defendants. The farm moved to terminate the attachment order and to change the venue from Halifax to Windsor.

The Nova Scotia Supreme Court allowed the motions.

Creditors and Debtors - Topic 2104

Seizure or attachment of debtors' property - General - Setting aside attachment order - The plaintiff sued the defendants (a farm and the beneficial owner of all the shares, assets and undertakings of the farm) for damages for breach of a contract in which the plaintiff agreed to harvest timber and wood fibre from land owned by the farm - The plaintiff obtained an attachment order against the defendants - The farm moved to terminate the attachment order - The Nova Scotia Supreme Court allowed the motion - The plaintiff had not established conduct on the part of the farm to justify the maintenance of the attachment order - An attachment order was an intrusive pre-trial remedy and its existence would hinder any attempt by the farm to resume or expand its operations - While the plaintiff asked the court to pierce the corporate veil and regard the farm and its owner as being intertwined, no principled basis to do so had been shown - The mere allegation of a connection between the individual and corporate defendants was not sufficient reason to dispose of the corporate veil - Ultimately, the plaintiff had not established any of the grounds available under the rules governing attachment orders - An attachment order should not be maintained on the basis of suspicion and supposition, which was the essence of the plaintiff's position in support - Both the former Rule 49.01 and the current Rule 44.02 of the Rules of Civil Procedure were clear in requiring the plaintiff to establish facts, not allegations or suspicions - The attachment order had to be terminated.

Cases Noticed:

Nova Scotia Power Inc. v. AMCI Export Corp. (2005), 238 N.S.R.(2d) 316; 757 A.P.R. 316; 2005 NSCA 152, refd to. [para. 9].

Newfoundland (Attorney General) v. Nalcap Holdings Inc. (1994), 124 Nfld. & P.E.I.R. 245; 384 A.P.R. 245 (Nfld. C.A.), refd to. [para. 20].

McNeil's Transport Ltd. and Caribou Leasing Ltd. v. Knight (1991), 96 Nfld. & P.E.I.R. 288; 305 A.P.R. 288 (Nfld. T.D.), refd to. [para. 22].

Avedis Agencies Ltd. et al. v. Swapper's Furniture Annex Ltd. et al. (1991), 115 N.S.R.(2d) 30; 314 A.P.R. 30 (T.D.), refd to. [para. 28].

Counsel:

Beth Newton, for the applicant/defendant;

Allen Fownes, for the respondent/plaintiff.

These motions were heard on November 26, 2009, at Halifax, Nova Scotia, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 19, 2010.