Atlantic Canada Opportunities Agency v. La Ferme D'Acadie et al., (2009) 283 N.S.R.(2d) 185 (CA)

• Judge: Saunders, Oland and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 18, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 283 N.S.R.(2d) 185 (CA);2009 NSCA 104

ACOA v. La Ferme D'Acadie (2009), 283 N.S.R.(2d) 185 (CA);

    900 A.P.R. 185

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.028

La Ferme D'Acadie and Charles Leary (appellants) v. The Atlantic Canada Opportunities Agency, an Agency established under the Atlantic Opportunities Agency Act pursuant to the Government Organization Act, Atlantic Canada 1987 (respondent)

(CA 305632; CA 310853; 2009 NSCA 104)

Indexed As: Atlantic Canada Opportunities Agency v. La Ferme D'Acadie et al.

Nova Scotia Court of Appeal

Saunders, Oland and Hamilton, JJ.A.

October 21, 2009.

Summary:

In 1998, the plaintiff made a "repayable contribution" to a partnership involving the defendants. In 2002, the plaintiff commenced an action regarding the defendants' default under their agreement. In November 2003, the plaintiff obtained a default judgment. In March 2005, the plaintiff agreed to set aside the default judgment. The defendant Leary answered a demand for particulars. There was no further activity until November 2007 when the plaintiff filed a notice of intention to proceed. In March 2008, the defendants applied to have the statement of claim dismissed for want of prosecution. The plaintiff applied for an order requiring the disclosure of the names and addresses of the partners.

The Nova Scotia Supreme Court, in a decision reported at (2008), 273 N.S.R.(2d) 53; 872 A.P.R. 53, dismissed the application to dismiss the claim for want of prosecution. The decision was silent on the plaintiff's application for disclosure. Subsequently, the court delivered an order requiring disclosure of the names and current addresses of the persons who were partners of the defendant La Ferme d'Acadie in June 1998 and staying the defendants' counterclaim until the disclosure was made. The defendants appealed from the disclosure order and applied for a stay of execution of the disclosure order.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a decision reported at (2009), 273 N.S.R.(2d) 64; 872 A.P.R. 64, dismissed the application. Prior to the hearing of the appeal of the disclosure order, the defendants sought an order for production of documents from the plaintiff. The plaintiff agreed to the granting of a production order. LeBlanc, J., indicated orally that he would grant the order. The plaintiff notified the defendants and LeBlanc, J., that virtually all of the documents sought had been destroyed. The defendants asked LeBlanc, J., to include in the production order, which had not yet been issued, a requirement to produce not only all of the documents in the plaintiff's possession, but also the destroyed documents, documents over which the plaintiff claimed privilege and details of the destruction process. LeBlanc, J., declined to reopen the production order hearing and issued an order requiring the plaintiff to produce all documents in its possession relating to its action against the defendants. The defendants appealed, asserting that LeBlanc, J., erred in failing to make the more expanded order that they had requested. The appeals of the disclosure order and of the production order proceeded.

The Nova Scotia Court of Appeal set aside the disclosure order and dismissed the appeal of the production order.

Partnership - Topic 3905

Relations between partners and third parties - Actions against partners or partnerships - Disclosure of partners' names - In 1998, the plaintiff made a "repayable contribution" to a partnership involving the defendants - In 2002, the plaintiff commenced an action regarding the defendants' default under their agreement - In 2008, the defendants' application to dismiss the claim for want of prosecution was dismissed - The plaintiff obtained an order requiring the disclosure of the names and addresses of the partners in the defendant partnership - The defendants appealed the disclosure order, asserting that the only partners were Leary and Perret and that the plaintiff already had this information - The only information undisclosed was Perret's address - The plaintiff obtained an order allowing substituted service on Perret, who was served and attended the appeal hearing - The plaintiff indicated that it would no longer rely on the disclosure order - The defendants declined to withdraw their appeal - The Nova Scotia Court of Appeal set aside the disclosure order in its entirety - Events had overtaken the disclosure order - That being so, it was unnecessary to deal with the judge's unfortunate failure to give reasons - See paragraphs 20 and 21.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - In 1998, the plaintiff made a "repayable contribution" to a partnership involving the defendants - In 2002, the plaintiff commenced an action regarding the defendants' default under their agreement - In 2008, the defendants' application to dismiss the claim for want of prosecution was dismissed - The defendants sought an order for production of documents from the plaintiff - The plaintiff agreed to the granting of a production order - LeBlanc, J., indicated orally that he would grant the order - The plaintiff notified the defendants and LeBlanc, J., that virtually all of the documents sought had been destroyed - The defendants asked LeBlanc, J., to include in the production order, which had not yet been issued, a requirement to produce not only all of the documents in the plaintiff's possession, but also the destroyed documents, documents over which the plaintiff claimed privilege and details of the destruction process - LeBlanc, J., declined to reopen the production order hearing and issued an order requiring the plaintiff to produce all documents in its possession relating to its action against the defendants - The defendants appealed, asserting that LeBlanc, J., erred in failing to make the more expanded order that they had requested - Prior to the hearing of the appeal, the defendants amended their counterclaim to add a claim for damages for spoilation - The Nova Scotia Court of Appeal dismissed the appeal - LeBlanc, J.'s, oral decision was based on the evidence and arguments presented to him at that time - He chose to grant the production order reflecting his oral decision - While he could have reopened the hearing once he was aware of the documents' destruction, it was within his discretion not to do so - The defendants' amended counterclaim would open the door to production and discovery of the records and personnel sought - In these circumstances, LeBlanc, J.'s, failure to give reasons did not prevent the court from disposing of the appeal nor did it lead to reversible error - See paragraphs 16 to 19.

Practice - Topic 6105

Judgments and orders - Amendment, rescission and variation of judgments and orders - Before judgment or order perfected or entered - [See Practice - Topic 4573 ].

Practice - Topic 6252

Judgments and orders - Setting aside orders - Grounds for - [See Partnership - Topic 3905 ].

Cases Noticed:

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 15].

Counsel:

Charles L. Leary, the appellant in person;

Vaughn Perret, in person;

Randall P.H. Balcome and Ashley Thomas, articled clerk, for the respondent.

These appeals were heard in Halifax, N.S., on September 18, 2009, by Saunders, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. On October 21, 2009, Hamilton, J.A., delivered the following reasons for judgment for the court.