National Bank Financial Ltd. v. Potter et al., 2004 NSSC 100

• Judge: Scanlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 12, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSC 100;(2004), 224 N.S.R.(2d) 231 (SC)

Nat. Bk. v. Potter (2004), 224 N.S.R.(2d) 231 (SC);

 708 A.P.R. 231

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. JN.004

National Bank Financial Ltd. (plaintiff) v. Daniel Potter, Starr's Point Capital Incorporated, Fiona Imrie, Gramm & Company Incorporated, 2532230 Nova Scotia Limited, 3020828 Nova Scotia Limited, Ronald Richter, Kenneth MacLeod, Futureed.Com Ltd., Donald Snow, Meg Research.Com Limited, 3027748 Nova Scotia Limited, Calvin Wadden, Raymond Courtney, Bernard Schelew, Blois Colpitts, Stewart McKelvey Stirling Scales, Bruce Clarke, 2317540 Nova Scotia Limited and Knowledge House Inc. (defendants)

Daniel Potter, Knowledge House Inc., and Starr's Point Capital Incorporated (plaintiff's by counterclaim) v. National Bank Financial Ltd., Real Raymond, Jean Turmel, Michael LaBonte, Lorie Haber, Guy Roby, Eric Hicks, Barry Morse, David Mack, Bruce Clarke, Joel Wisenfeld, Alan V. Parish, Brian K. Awad and Donald Winchell (defendant's by counterclaim) and Nova Scotia Barristers' Society (intended intervener)

(S.H. 206439; 2004 NSSC 100)

Indexed As: National Bank Financial Ltd. v. Potter et al.

Nova Scotia Supreme Court

Scanlan, J.

May 14, 2004.

Summary:

The Nova Scotia Barristers' Society applied under rule 8.02 of the Civil Procedure Rules (N.S.) to intervene as friend of the court in litigation in which the issue of solicitor-client privilege was raised.

The Nova Scotia Supreme Court allowed the application.

Barristers and Solicitors - Topic 7643

Regulation - Powers of governing bodies - To intervene in litigation - Two members of the Council of the Nova Scotia Barristers' Society voted in favour of the Society applying to intervene as friend of the court in litigation in which a number of the defendants were represented by the members's firms - The Nova Scotia Supreme Court was not satisfied that the members' involvement should result in the dismissal of the Society's application but stated that it would have been better if the two members had not been involved in the decision to intervene - The court trusted that the members would have no further involvement related to the court proceedings - See paragraphs 16 to 18.

Barristers and Solicitors - Topic 7643

Regulation - Powers of governing bodies - To intervene in litigation - [See Practice - Topic 687 ].

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - A server originally owned by one of the defendants came into possession of the plaintiff - The server contained e-mails to and from a number of individuals who were party to the present or related proceedings - The present proceedings contained claims, cross claims and counter claims based on allegations that many parties, including counsel, participated in a stock manipulation scheme or other wrongdoings that led to losses in the "millions of dollars" and that an employee of the plaintiff bank was a party to the scheme - Privilege was raised - The Nova Scotia Barristers' Society sought to intervene as a friend of the court (rule 8.02) - The Nova Scotia Supreme Court allowed the application where the broader public issue of the importance of solicitor-client privilege might not receive the attention it deserved if the matter was argued only by the parties.

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, consd. [para. 5].

Gray, Administrator of MacDonald Estate - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Martin v. Gray - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Nova Scotia v. Beaver et al. (1984), 66 N.S.R.(2d) 419; 152 A.P.R. 419 (T.D.), dist. [para. 11].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 8.02 [para. 1].

Authors and Works Noticed:

Muldoon, Paul, Law of Intervention Status and Practice, pp. 118 and 119 [para. 12].

Counsel:

Douglas A. McGillivray, Q.C., for the intended intervener;

Anne S. Derrick, Q.C., for the intended intervener;

James Hodgson, for Alan Parish, Brian Awad and Donald Winchell;

Dan Potter, for himself as defendant and on cross claim against Blois Colpitts and Stewart, McKelvey Stirling Scales;

Dale Dunlop, for Kenneth MacLeod, Futureed.com.Ltd., 3027748 Nova Scotia Ltd. and Calvin Wadden;

Robert Belliveau, Q.C., for Bernard Schelew;

Tim Hill, for Raymond Courtney and Francyne Hunter;

Alan V. Parish, Q.C., for National Bank Financial Ltd.;

K. Michael Tweel, for Gerard McInnis and Janine McInnis;

Richard Bureau, for Douglas George Rudolph;

James D.G. Douglas, for Blois Colpitts;

Philip M. Chapman, for Bruce Clarke and 2317540 Nova Scotia Ltd.;

Douglas A. Caldwell, Q.C., for Fiona Imrie, Gramm & Co. Ltd., 2532230 Nova Scotia Ltd.;

Peter Nathanson, for Ronald Richter;

John F. Rook, Q.C., for Stewart McKelvey Stirling Scales;

Dwight J.W. Rudderham, for Donald Snow, Meg Research and 3027748 Nova Scotia Ltd.;

Glenn R. Jessome, for Solution Inc.;

George W. MacDonald, Q.C., for 1384156 Ontario Inc.

Scanlan, J., of the Nova Scotia Supreme Court heard this application on May 12, 2004, and delivered the following decision on May 14, 2004.