Hatheway (Dr. Robert) Professional Corp. et al. v. Smith et al., (2015) 356 N.S.R.(2d) 308 (SC)

• Judge: Smith, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 23, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 356 N.S.R.(2d) 308 (SC);2015 NSSC 68

Hatheway Prof. Corp. v. Smith (2015), 356 N.S.R.(2d) 308 (SC);

    1126 A.P.R. 308

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.018

Dr. Robert Hatheway Professional Corporation, a body corporate, and 3272239 Nova Scotia Limited, a body corporate, operating as The Hatheway Group (applicants) v. Dr. Eric Smith, Elska Holdings Incorporated, a body corporate, Elska Orthodontics Ltd., a body corporate, Dr. Catherine McLeod, 3274985 Nova Scotia Limited, a body corporate, operating as Embrace Orthodontics and Embrace My Smile Orthodontics and South Shore Orthodontics (respondents)

(Hfx. No. 433574; 2015 NSSC 68)

Indexed As: Hatheway (Dr. Robert) Professional Corp. et al. v. Smith et al.

Nova Scotia Supreme Court

Smith, J.

March 3, 2015.

Summary:

The plaintiffs alleged that the defendants had breached a binding agreement for purchase and sale of an orthodontics practice. By way of an application, the plaintiffs sued the defendants for, inter alia, breach of contract. The defendants moved under rule 6.02 to convert the application to an action.

The Nova Scotia Supreme Court denied the motion.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - The plaintiffs alleged that the defendants had breached a binding agreement for purchase and sale of an orthodontics practice - By way of an application, the plaintiffs sued the defendants for, inter alia, breach of contract - The defendants moved under rule 6.02 to convert the application to an action - The Nova Scotia Supreme Court denied the motion - As this was a case where one party alleged that a verbal agreement had been made, while other parties denied this, credibility was an issue - This did not mean that the matter could not proceed as an application - Credibility could be assessed satisfactorily by way of an application - The court's role on a motion under rule 6.02 was to achieve a balance that shortened time and lessened costs, while ensuring that the proceeding maintained the essential attributes of a fair fact-finding process - Those goals could best be achieved by proceeding by way of an application, but permitting or determining that some of the witnesses would give their direct evidence orally.

Practice - Topic 2493

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Conversion to or from formal action - [See Practice - Topic 73 ].

Practice - Topic 3082

Applications and motions - Applications - Disposition - Application to proceed as action - [See Practice - Topic 73 ].

Cases Noticed:

Guest v. MacDonald (2012), 325 N.S.R.(2d) 226; 1031 A.P.R. 226; 2012 NSSC 452, refd to. [para. 9].

Jeffrie v. Hendriksen et al. (2011), 306 N.S.R.(2d) 79; 968 A.P.R. 79; 2011 NSSC 292, refd to. [para. 11].

Milburn et al. v. GrowthWorks Canadian Fund Ltd. et al. (2012), 314 N.S.R.(2d) 268; 994 A.P.R. 268; 2012 NSSC 106, refd to. [para. 15].

Roué v. Nova Scotia et al. (2013), 327 N.S.R.(2d) 346; 1036 A.P.R. 346; 2013 NSSC 45, affd. (2013), 333 N.S.R.(2d) 327; 1055 A.P.R. 327; 2013 NSCA 94, refd to. [para. 20].

Citibank Canada v. Begg et al. (2010), 287 N.S.R.(2d) 322; 912 A.P.R. 322; 2010 NSSC 56, dist. [para. 24].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 37].

Monk v. Wallace et al. (2009), 291 N.S.R.(2d) 104; 922 A.P.R. 104; 2009 NSSC 425, refd to. [para. 40].

Counsel:

Bruce MacIntosh, Q.C., and Donn Fraser, for the applicants;

Dennis J. James, Q.C., for Dr. Eric Smith, Elska Holdings Incorporated and Elska Orthodontics Ltd.;

Michael E. Dunphy, Q.C., for Dr. Catherine McLeod and 3274985 Nova Scotia Limited.

This motion was heard at Halifax, N.S., on February 23, 2015, by Smith, J., of the Nova Scotia Supreme Court, who delivered an oral decision on March 3, 2015, and the following written decision on March 6, 2015.