Nova Scotia Power Inc. v. AMCI Export Corp., 2005 NSCA 152

• Judge: Roscoe, Freeman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 09, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSCA 152;(2005), 238 N.S.R.(2d) 316 (CA)

N.S. Power v. AMCI Export (2005), 238 N.S.R.(2d) 316 (CA);

    757 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. NO.040

AMCI Export Corporation (appellant) v. Nova Scotia Power Incorporated (respondent)

(CA 246740; 2005 NSCA 152)

Indexed As: Nova Scotia Power Inc. v. AMCI Export Corp.

Nova Scotia Court of Appeal

Roscoe, Freeman and Cromwell, JJ.A.

November 24, 2005.

Summary:

Nova Scotia Power Inc. sued the defendant, an American company, for damages for breach of a contract to supply coal. Nova Scotia Power obtained an attachment order against the defendant's assets in Nova Scotia to secure damages in the action. The defendant applied under Civil Procedure Rule 49.12(c) to set aside the attachment order.

The Nova Scotia Supreme Court, in a decision reported at 233 N.S.R.(2d) 223; 739 A.P.R. 223, dismissed the application. The court held that the defendant resided out of the jurisdiction pursuant to rule 49.01(1)(a) and Nova Scotia Power was entitled to the attachment order. The defendant appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Practice - Topic 3373

Interim proceedings - Preservation of property - Attachment order - Setting aside or varying - Nova Scotia Power Inc. sued the defendant, an American company, for damages for breach of a contract to supply coal - Nova Scotia Power obtained an attachment order against the defendant's assets in Nova Scotia to secure damages in the action - The defendant applied under Civil Procedure Rule 49.12(c) to set aside the attachment order - A chambers judge dismissed the application, finding that the defendant resided out of the jurisdiction pursuant to rule 49.01(1)(a) - The Nova Scotia Court of Appeal held that the chambers judge did not err in concluding that the defendant company resided outside the jurisdiction - The defendant's decision making took place at its head office in Pennsylvania - When its customers in Nova Scotia received deliveries of coal, they wired the money to the defendant's bank account in Montreal - The defendant had no physical presence in the province, no investments, no office, no employees and no assets (except for accounts receivable for delivered coal and coal awaiting delivery) - See paragraph 46.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - Attachment order - Civil Procedure Rule 49.01(1) set out the grounds for an application for an attachment order - The ground under the first part of rule 49.01(1)(a) was where a defendant "resides out of the jurisdiction" - The Nova Scotia Court of Appeal stated that "'residence out of the jurisdiction' for a corporate defendant pursuant to rule 49.01(1)(a) must reasonably mean the lack of a presence in the province substantial enough to be a counter to the mischief of non-residence, that is, the impediments a plaintiff faces in attempting to enforce an order or judgment out of the jurisdiction. When a prima facie non-resident company has sufficient indicia of residence in the jurisdiction to offset the impediment of non-residence, that is, when the orders and judgments against it can be enforced as they would be against a resident corporation, it cannot be said to be non-resident resident 'out of the jurisdiction' for purposes of rule 49.01(1)(a)" - See paragraph 42.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - Attachment order - Civil Procedure Rule 49.01(1) set out the grounds for an application for an attachment order - The ground under the first part of rule 49.01(1)(a) was where a defendant "resides out of the jurisdiction" - The Nova Scotia Court of Appeal stated that whether the indicia of residence in the jurisdiction were sufficient for purposes of rule 49.01(1)(a) was a matter of fact to be determined on the evidence - "Evidence of such indicia would include registration as a mandatory requirement; it would include the presence of assets and the form they took, whether they were investments, stock-in-trade or mere goods in transit to a purchaser; it would include the manner of doing business; domicile and the location of the head office and other seats of decision making; maintenance and purpose of branch offices, factories or warehouses; the presence and status of employees, and any other relevant consideration" - See paragraph 43.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - Attachment order - Civil Procedure Rule 49.01(1) set out the grounds for an application for an attachment order - The ground under the first part of rule 49.01(1)(a) was where a defendant "resides out of the jurisdiction" - The Nova Scotia Court of Appeal stated that "If a corporate defendant has a substantial enough presence to be found to have a residence in the jurisdiction, it would seem an unreasonable use of semantics to hold that it must be deemed to reside out of the jurisdiction merely because it has another residence in another jurisdiction" - See paragraph 45.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - Attachment order - Civil Procedure Rule 49.01(1) set out the grounds for an application for an attachment order - The ground under rule 49.01(1)(a) was where a defendant "resides out of the jurisdiction, or is a corporation that is not registered under the Corporations Registration Act" - The Nova Court of Appeal agreed that rule 49.01(1)(a) was to be read disjunctively, applying both to defendants (individual or corporate) residing out of the jurisdiction and to corporations not registered under the Corporations Registration Act - See paragraph 10.

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].

Cody's Ltd. v. Chester Branch Can. Legion (1963), 47 M.P.R. 203, consd. [para. 22].

Tytler v. Canadian Pacific Railway Co. (1898), 29 O.R. 654, refd to. [para. 22].

LaSalle Extension University v. Linley, [1933] 3 D.L.R. 643, refd to. [para. 22].

Bank of Toronto v. Pickering (1919), 46 O.L.R. 289, refd to. [para. 22].

Royal Bank of Canada v. McMahon (1934), 8 M.P.R. 363 (P.E.I.S.C.), refd to. [para. 22].

Canada v. National Trust Co., [1933] S.C.R. 670, refd to. [para. 28].

Ehmka v. Border Cities Improvement Co., [1922] O.J. No. 125, refd to. [para. 28].

Canadian Channing Corp. v. Gauthier (1965), 55 D.L.R.(2d) 146 (N.S.T.D.), consd. [para. 30].

Gesco Industries Inc. v. Welby's Fine Furniture, [1986] 6 W.W.R. 573; 46 Man.R.(2d) 120 (Q.B.), refd to. [para. 34].

Ashland Co. v. Armstrong (1906), 11 O.L.R. 414 (H.C.), refd to. [para. 34].

Crosbie-Osa Ltd. v. Bank of Montreal (1998), 163 Nfld. & P.E.I.R. 181; 503 A.P.R. 181 (Nfld. S.C.), refd to. [para. 34].

Pet Milk Canada Ltd. et al. v. Olympia & York Developments (1974), 4 O.R.(2d) 640 (S.C. Master), refd to. [para. 34].

Ritter et al. v. Hoag et al. (2003), 334 A.R. 290 (Q.B.), refd to. [para. 34].

Bauscher-Grant Farms Inc. et al. v. Lake Diefenbaker Potato Corp. (Bankrupt) et al. (2000), 201 Sask.R. 301 (Q.B.), refd to. [para. 34].

Sunrise Produce Ltd. v. Irving Pulp and Paper Ltd. and Duplessis (1983), 43 Nfld. & P.E.I.R. 129; 127 A.P.R. 129 (P.E.I.S.C.), refd to. [para. 34].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 38].

Municipal Contracting Ltd. v. Nova Scotia (Attorney General) (2003), 212 N.S.R.(2d) 36; 665 A.P.R. 36; 2003 NSCA 10, refd to. [para. 38].

Stanley v. Acan Windows Inc. (1995), 135 Nfld. & P.E.I.R. 29; 420 A.P.R. 29 (Nfld. C.A.), consd. [para. 40].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 49.01(1)(a) [para. 5].

Authors and Works Noticed:

Castel, Jean-Gabriel and Walker, Janet, Canadian Conflict of Laws (6th Ed.), vol. 2 [para. 24].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 38].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), generally [para. 38].

Counsel:

Craig Garson, Q.C. and Stanley W. MacDonald, for the appellant;

David Coles and Nicole Godbout, for the respondent.

This appeal was heard on November 9, 2005, at Halifax, Nova Scotia, before Roscoe, Freeman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Freeman, J.A., on November 24, 2005.