Atlantic Canada Opportunities Agency v. La Ferme D'Acadie et al., (2009) 273 N.S.R.(2d) 64 (CA)

• Judge: Fichaud, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 14, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 273 N.S.R.(2d) 64 (CA);2009 NSCA 5

ACOA v. La Ferme D'Acadie (2009), 273 N.S.R.(2d) 64 (CA);

    872 A.P.R. 64

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.045

La Ferme D'Acadie and Charles Leary (applicants/appellants) v. The Atlantic Canada Opportunities Agency (respondent)

(CA 305632; 2009 NSCA 5)

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

Nova Scotia Court of Appeal

Fichaud, J.A.

January 16, 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, Leary 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 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 Leary's counterclaim until the disclosure was made. Leary 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., dismissed the application.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - 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 - In November 2007, the plaintiff filed a notice of intention to proceed - In March 2008, Leary's 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 defendants who were partners in the defendant partnership - Leary appealed the disclosure order and applied for a stay of its execution pending the appeal - The Nova Scotia Court of Appeal, per Fichaud, J.A., dismissed the application - The applicant for a stay had to show either (1) an arguable appeal, that denial of a stay would cause irreparable harm and that the balance of convenience favoured a stay or (2) exceptional circumstances justifying a stay - As there was no decision with written or oral reasons, there might be an arguable appeal - However, the court rejected Leary's argument that the irreparable harm would be the delay that might be caused when the disclosure allowed the plaintiff to serve the originating notice on the defendant partner who had not yet been served - Delay caused by service to a co-defendant who had withheld the address for service could not be considered irreparable harm - Further, there were no exceptional circumstances - A stay to deter service of an originating notice on a co-defendant was not remotely mandated in the interests of justice.

Cases Noticed:

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 10].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 11].

O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 193 N.S.R.(2d) 8; 602 A.P.R. 8 (C.A.), refd to. [para. 16].

Grafton Street Restaurant Ltd. v. Nova Scotia Utility and Review Board et al., [2002] N.S.R.(2d) Uned. 64; 2002 NSCA 97, refd to. [para. 16].

2502731 Nova Scotia Ltd. v. Plazacorp Retail Properties Ltd., [2004] N.S.R.(2d) Uned. 83; 2004 NSCA 62, refd to. [para. 16].

Aulwes v. Mai (2002), 206 N.S.R.(2d) 312; 645 A.P.R. 312; 2002 NSCA 95, refd to. [para. 16].

Brett et al. v. Amica Mature Lifestyles Inc. (2004), 225 N.S.R.(2d) 175; 713 A.P.R. 175; 2004 NSCA 93, refd to. [para. 22].

Counsel:

Charles Leary, for the applicants;

Randall Balcome, for the respondent.

This application was heard on January 14, 2009, by Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on January 16, 2009.