Skipper Fisheries Ltd. v. Thorbourne et al., (1996) 150 N.S.R.(2d) 296 (SC)

• Judge: Gruchy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 10, 1995
• Jurisdiction: Nova Scotia
• Citations: (1996), 150 N.S.R.(2d) 296 (SC)

Skipper Fisheries v. Thorbourne (1996), 150 N.S.R.(2d) 296 (SC);

  436 A.P.R. 296

MLB headnote and full text

Skipper Fisheries Limited, a body corporate (plaintiff) 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 (defendants)

(S.H. No. 57202)

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

Nova Scotia Supreme Court

Gruchy, J.

April 23, 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 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 allowed the application.

Contempt - Topic 505

What constitutes contempt - Civil con­tempt - Defendants applied to have the plaintiff found in contempt and the action dismissed for deliberately failing to make full discovery of matters in issue (Nova Scotia Civil Procedure Rule 20.09(2)) - The trial judge concluded that the plaintiff had failed to make a reasonable effort to give full discovery, but the failure was not of such a degree of contumacious conduct as to warrant dismissal of the action - 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 allowed the application - The court noted that the production of the documents by the plain­tiff after receiving notice of the defendants' application was too late.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of - [See Con­tempt - Topic 505 ].

Contempt - Topic 3302

Punishment - Dismissal of action - [See Contempt - Topic 505 ].

Contempt - Topic 3302

Punishment - Dismissal of action - In considering whether or not it should enter an order of dismissal of a plaintiff's action for contempt, the Nova Scotia Supreme Court considered the following factors: (i) the extent of the party's (as opposed to counsel's) personal responsibility for the violation; (ii) the prejudice to the adver­sary caused by the violation; (iii) whether there was a clear record of delay or contu­macious conduct by the offender; (iv) whether the offense was wilful or in bad faith; (v) whether the purpose of the sanc­tion could be substantially achieved by use of a less drastic alternative; (vi) the merits of the claim of defense that would be stricken; and (vii) the prejudice to the court caused by the violation - See para­graphs 38 and 39.

Practice - Topic 5352

Dismissal of action - General - For noncompliance with rules of court - [See Contempt - Topic 505 ].

Cases Noticed:

Westbury Canada Life v. Newall (1992), 6 C.P.C.(3d) 281 (Ont. Master), refd to. [para. 18].

Royal Trust Corp. of Canada v. Adamson (1992), 14 C.P.C.(3d) 352 (Ont. Master), refd to. [para. 18].

Goodman v. Rossi (1994), 75 O.A.C. 331; 120 D.L.R.(4th) 557 (Div. Ct.), refd to. [para. 19].

I.A.S. Computer Corp. v. Mandala Systems Ltd. et al. (1980), 40 N.S.R.(2d) 541; 73 A.P.R. 541 (T.D.), refd to. [para. 19].

Riddick v. Thames Board Mills Ltd., [1977] 3 All E.R. 677 (C.A.), refd to. [para. 19].

Sezerman v. Youle (1995), 147 N.S.R.(2d) 71; 426 A.P.R. 71 (S.C.), refd to. [para. 19].

United Nurses of Alberta v. Alberta (At­torney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241; 89 D.L.R.(4th) 609, refd to. [para. 37].

G.W.L. Properties Ltd. v. Grace (W.R.) & Co. of Canada Ltd., [1993] B.C.J. No. 408 (S.C.), refd to. [para. 40].

Criscore Enterprises Ltd. et al. v. Jules et al. (1992), 10 B.C.A.C. 147; 21 W.A.C. 147 (C.A.), refd to. [para. 41].

HDYC Holdings Ltd. (Trustee of) v. Chu, [1993] B.C.J. No. 88 (S.C.), refd to. [para. 41].

Ultra Fuels Ltd. v. Kern et al. (1992), 14 B.C.A.C. 306; 26 A.P.R. 306 (C.A.), refd to. [para. 41].

Halifax (County) v. Fancy (1992), 115 N.S.R.(2d) 196; 314 A.P.R. 196 (T.D.), refd to. [para. 41].

Church of Scientology of Toronto v. Maritime Broadcasting Co. et al. (1979), 33 N.S.R.(2d) 500; 57 A.P.R. 500 (C.A.), refd to. [para. 41].

Authors and Works Noticed:

Borrie and Lowe, Law of Contempt (2nd Ed. 1983), p. 393 [para. 36].

Joseph, Gregory P., Sanctions: The Federal Law of Litigation Abuse, pp. 449 to 457 [para. 38].

Oswald, Contempt of Court (1911), p. 6 [para. 34].

Counsel:

Douglas A. Caldwell, Q.C., and Lloyd I. Berliner, for the plaintiff;

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

Wayne Thorbourne, personally, and on be­half of Claudette Thorbourne and Thor Seiners Ltd.;

James L. Connors, Q.C., for the defendant, S. Clifford Hood.

This application was heard on November 10, 1995, at Halifax, Nova Scotia, before Gruchy, J., of the Nova Scotia Supreme Court, who released the following decision on April 23, 1996.