Tinkham Real Estate Ltd. et al. v. Future Group Realty Ltd. et al., 2007 NSSC 167

• Jurisdiction: Nova Scotia
• Judge: Wright, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: 2007 NSSC 167,(2007), 255 N.S.R.(2d) 66 (SC)
• Date: 27 April 2007

Tinkham Real Estate v. Future Group (2007), 255 N.S.R.(2d) 66 (SC);

    814 A.P.R. 66

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JN.008

Tinkham Real Estate Limited, a body corporate and Sharon Fraser (plaintiffs) v. Future Group Realty Ltd., a body corporate, Russell Cushing, Wendy Cushing, Hugh Tinkham, Marty Gay, Don Cain, Ben Fruehman and Novacan Real Estate Limited, a body corporate (defendants)

(S.H. No. 155187; 2007 NSSC 167)

Indexed As: Tinkham Real Estate Ltd. et al. v. Future Group Realty Ltd. et al.

Nova Scotia Supreme Court

Wright, J.

April 27, 2007.

Summary:

The defendants applied for an adjournment of the trial pending the outcome of an appeal in a closely-related action.

The Nova Scotia Supreme Court allowed the application.

Editor's note: for the trial decision of the related action, see 253 N.S.R.(2d) 331; 807 A.P.R. 331; 2007 NSSC 97.

Practice - Topic 5065

Conduct of trial - Adjournments - General - Cushing was a real estate broker for the plaintiffs - Hood, a lawyer, told Cushing that, if she left her employment, she should give notice and "not mess with" the plaintiffs' listings or agents - Cushing left her employment without notice and established a new company - The plaintiffs sued the defendants, including Cushing, alleging that Cushing took their listings and solicited their agents - Hood told the plaintiffs what he had said to Cushing - Cushing sued Hood, alleging breach of solicitor-client privilege - The action was dismissed on the basis that no solicitor-client relationship was established - Cushing appealed - The defendants applied for an adjournment pending the Hood appeal's disposition - The Nova Scotia Supreme Court allowed the application - Where a question left for determination by a court of appeal might affect a trial, the trial ought to be adjourned pending the appeal's outcome unless the respondent demonstrated very special reasons otherwise - Hood's evidence was material, if admissible - If this trial proceeded and the Hood appeal was successful, making his evidence inadmissible, this case would inevitably be appealed and/or retried - The added delay and inconvenience to the plaintiffs by granting an adjournment was overshadowed by the risk of prejudice to the defendants of proceeding without first knowing the appeal court's ruling.

Cases Noticed:

Cushing et al. v. Hood (2007), 253 N.S.R.(2d) 331; 807 A.P.R. 331; 2007 NSSC 97, refd to. [para. 4].

Moore et al. v. Economical Mutual Insurance Co. (1999), 177 N.S.R.(2d) 269; 542 A.P.R. 269 (C.A.), refd to. [para. 14].

Wall v. 679927 Ontario Ltd. et al. (2006), 244 N.S.R.(2d) 201; 774 A.P.R. 201 (S.C.), refd to. [para. 14].

Sidoroff v. Joe (1992), 21 B.C.A.C. 192; 37 W.A.C. 192 (C.A.), refd to. [para. 14].

Spence v. Olivetti, [1993] O.J. No. 2843, refd to. [para. 16].

Atlas Construction Inc. v. Brownstones, [1996] O.J. No. 703 (Gen. Div.), refd to. [para. 17].

Counsel:

Kevin A. MacDonald, for the plaintiffs;

Rubin Dexter, for the defendants (Future Group Realty Ltd. and Wendy Cushing);

R. Andrew Kimball (written submissions only), for the defendant (Russell Cushing);

Richard Murphy (written submissions only), for the defendants (Hugh Tinkman, Marty Gay, Don Cain, Ben Fruehman and Novacan Real Estate Ltd.).

This application was heard on April 27, 2007, in Halifax, Nova Scotia, by Wright, J., of the Nova Scotia Supreme Court, who delivered the following decision orally on the same date and in writing on June 1, 2007.