Skipper Fisheries Ltd. v. Thorbourne et al., (1996) 154 N.S.R.(2d) 72 (CA)

• Judge: Flinn, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 06, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 154 N.S.R.(2d) 72 (CA)

Skipper Fisheries v. Thorbourne (1996), 154 N.S.R.(2d) 72 (CA);

    452 A.P.R. 72

MLB headnote and full text

Skipper Fisheries Limited, a body corporate (appellant) v. Wayne Thorbourne, Claudette Thorbourne, Thor Seiners Limited, a body corporate, Phoenix Fisheries Limited, a body corporate, Paul Edward Blades, Brian Arthur Blades, Clifford V. Goreham and S. Clifford Hood (respondents)

(C.A. No. 127612)

Indexed As: Skipper Fisheries Ltd. v. Thorbourne et al.

Nova Scotia Court of Appeal

Flinn, J.A.

September 9, 1996.

Summary:

Defendants applied to have the plaintiff found in contempt and the action dismissed, asserting that the plaintiff had deliberately failed to disclose documents and information and to give full discovery relevant to the matters in issue (Nova Scotia Civil Pro­cedure Rule 20.09(2)).

The Nova Scotia Supreme Court, in a decision reported 137 N.S.R.(2d) 62; 391 A.P.R. 62, held that the plaintiff had not com­plied with rule 20.09(2), but refused to dismiss the action. The court ordered the plaintiff to pay solicitor and client costs for the discovery of the matters in issue and for time spent on the application and reasonable time spent in preparation for the application. The court ordered the plaintiff to pay the defendants' throw-away expert costs. Having made findings of credibility, the judge sealed the decision and excused himself from con­tinuing with the trial. The defendants appealed the sealing of the decision.

The Nova Scotia Court of Appeal, in a decision reported 137 N.S.R.(2d) 60; 391 A.P.R. 60, allowed the appeal. After further delay of 18 months (during which costs were disbursed but no documents produced), the defendants again applied to have the plain­tiff's claim dismissed for continuing con­tempt.

The Nova Scotia Supreme Court, in a decision reported 150 N.S.R.(2d) 296; 436 A.P.R. 296, allowed the application. The plaintiff appealed. The defendants applied for an order requiring the plaintiff to include in its appeal book a complete transcript of the hearing of the first application to have the plaintiff found in contempt.

The Nova Scotia Court of Appeal, per Flinn, J.A., dismissed the application.

Practice - Topic 9053

Appeals - Record on appeal - Content of record on appeal - A trial judge found a plaintiff in contempt (the first hearing) for failure to disclose documents and informa­tion and give full discovery, and ordered the proceedings stayed until the plaintiff had, inter alia, delivered certain documents and informa­tion to the defendant - No documents were produced - At a second hearing, the plain­tiff's claim was dismissed for continuing con­tempt - The plaintiff appealed - The defendants applied for an order requiring the plaintiff to include in its appeal book a complete transcript of the first hearing - The Nova Scotia Court of Appeal, per Flinn, J.A., concluded that the evidence adduced at the first hear­ing was neither necessary nor relevant - Further, it would be unduly onerous, especially con­sidering costs, for the plain­tiff to be required to reproduce multiple copies of that material.

Practice - Topic 9055

Appeals - Record on appeal - Record of trial evidence or original proceedings - [See Practice - Topic 9053 ].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 62.14(3) [para. 10].

Counsel:

Peter M. Rogers and Lloyd I. Berliner, for the appellant;

Thomas E. Pittman, for the respondents, Wayne Thorbourne, Claudette Thor­bourne and Thor Seiners Ltd.;

Robert G. Belliveau, Q.C., for the respon­dents, Phoenix Fisheries Ltd., Paul Edward Blades, Brian Arthur Blades and Clifford V. Goreham;

James L. Connors, for the respondent, S. Clifford Hood.

This application was heard in Chambers, on September 6, 1996, before Flinn, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on Septem­ber 9, 1996.