Skipper Fisheries Ltd. v. Thorbourne et al., (1994) 137 N.S.R.(2d) 60 (CA)

• Judge: Hallett, Matthews and Freeman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 25, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 137 N.S.R.(2d) 60 (CA)

Skipper Fisheries v. Thorbourne (1994), 137 N.S.R.(2d) 60 (CA);

  391 A.P.R. 60

MLB headnote and full text

S. Clifford Hood (appellant) v. Skipper Fisheries Limited (respondent)

Wayne Thorbourne and Claudette Thorbourne (appellant) v. Skipper Fisheries Limited (respondent)

(C.A.C. No. 106848)

Paul Edward Blades, Brian Arthur Blades and Clifford V. Goreham (appellant) v. Skipper Fisheries Limited (respondent)

(C.A. No. 106891)

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

Nova Scotia Court of Appeal

Hallett, Matthews and Freeman, JJ.A.

November 25, 1994.

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 at paragraphs 5 to 69 below, 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 allowed the appeal.

Evidence - Topic 4611

Witnesses - Examination - General prin­ciples - Leading questions - 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)) - During the course of reading in certain discovery evidence at the hearing, disagreements developed over the admissibility of answers to leading questions put to a witness by his own counsel - The Nova Scotia Supreme Court reviewed the applicable law and stated that the disputed answers would be ignored where there was leading questions on important points - The court further held that the questions and answers objected to would not have changed the outcome of the application - See paragraphs 57 to 65 - The Nova Scotia Court of Appeal did not address the issue.

Practice - Topic 3712

Evidence - Sealed evidence - When available - Defendants applied to dismiss an action - The trial judge made findings of credibility and refused the application - To avoid tainting the mind of the judge who would eventually try the case, the trial judge, on his own motion, ordered the decision sealed and excused himself from continuing with the trial - See paragraphs 66 to 69 - The Nova Scotia Court of Appeal concluded that the trial judge erred in principle, because (i) he did not give counsel an opportunity to make sub­missions; (ii) the sealing of the decision might curtail the right of counsel at trial to cross-examine the witnesses respecting their credibility; (iii) the case did not fall within a recognized class of cases where sealing was appropriate - See paragraphs 1 to 4.

Practice - Topic 4562

Discovery - Production and inspection of documents - Remedy for failure to pro­duce - [See Practice - Topic 7464 ].

Practice - Topic 5352

Dismissal of action - General - For noncompliance with rules of court - [See Practice - Topic 7464 ].

Practice - Topic 7464

Costs - Solicitor and client costs - Enti­tlement to - In contempt proceedings - 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 Nova Scotia Supreme Court 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 - The court ordered the plaintiff to pay solicitor and client costs for the dis­covery of the matters in issue and for time spent on and reasonable time spent in preparation for the application - The court ordered the plaintiff to pay the defendants throw-away expert costs - See paragraphs 5 to 56 - The Nova Scotia Court of Appeal did not discuss the issue.

Practice - Topic 7470.7

Costs - Solicitor and client costs - Entitlement to - Failure to make full dis­closure - [See Practice - Topic 7464 ].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, consd. [para. 46].

Kynock et al. v. Johnson (1975), 20 N.S.R.(2d) 586; 27 A.P.R. 586 (T.D.), consd. [para. 47].

McCrea et al. v. Historic Properties Ltd. et al. (1988), 89 N.S.R.(2d) 201; 227 A.P.R. 201 (C.A.), refd to. [para. 47].

Central Mortgage and Housing Corp. v. Foundation Co. of Canada Ltd. et al. (1984), 63 N.S.R.(2d) 402; 141 A.P.R. 402 (T.D.), refd to. [para. 47].

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. 48].

Halifax (County) v. Fancy (1992), 115 N.S.R.(2d) 196; 314 A.P.R. 196 (T.D.), refd to. [para. 48].

Kin Franchising Ltd. v. Donco Ltd. (1993), 14 C.P.C.(3d) 193 (Alta. C.A.), refd to. [para. 48].

National Hockey League et al. v. Metro­politan Hockey Club Inc. et al. (1976), 427 U.S. 639, refd to. [para. 50].

Cine Forty, Second Sheet Theatre Group v. Allied Artists Pictures Corp. et al. (1979), 60 F.2d 1062, refd to. [para. 50].

Founding Church of Scientology v. Webster (1986), 82 F. 1448 (D.C. Cir.), refd to. [para. 50].

Morgan v. Massachusetts General Hospital (1990), 901 F.2d (1st Cir.), refd to. [para. 50].

Visa International Service Association v. Block Brothers Realty Ltd., [1983] 4 W.W.R. 665 (B.C.S.C.), refd to. [para. 52].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 18.14(1), rule 18.14(2) [para. 59]; rule 20 [paras. 46, 47]; rule 20.09(1) [para. 5]; rule 20.09(2) [paras. 5, 53].

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Choate, Clara E., Discovery in Canada (1977), p. 150 [para. 63].

Joseph, Gregory P., Sanctions, the Federal Law of Litigation Abuse (1989), p. 449 [para. 51].

Williston, W.B., and Rolls, R.J., The Con­duct of an Action (1982), pp. 79 [para. 60]; 80 [para. 61].

Counsel:

James L. Connors and David G. Coles, for the appellant, S. Clifford Hood;

Douglas A. Caldwell, Q.C., and Lloyd I. Berliner, for the respondent, Skipper Fisheries Ltd.;

Thomas Pittman, for the appellants, Wayne and Claudette Thorbourne;

Robert G. Belliveau, Q.C., and Christopher C. Robinson, for the appellants, Paul Edward Blades, Brian Arthur Blades and Clifford V. Goreham.

This appeal was heard on November 25, 1994, before Hallett, Matthews and Freeman, JJ.A., of the Nova Scotia Court of Appeal.

On November 25, 1994, Hallett, J.A., delivered judgment orally for the Court of Appeal.