Wadden et al. v. BMO Nesbitt Burns, 2014 NSCA 45

• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 20, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 45;(2014), 343 N.S.R.(2d) 35 (CA)

Wadden v. BMO Nesbitt Burns (2014), 343 N.S.R.(2d) 35 (CA);

    1084 A.P.R. 35

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.022

Calvin Wadden, Andrea Wadden and 3019620 Nova Scotia Limited (applicants/appellants) v. BMO Nesbitt Burns (respondent)

(CA 424852; 2014 NSCA 45)

Indexed As: Wadden et al. v. BMO Nesbitt Burns

Nova Scotia Court of Appeal

Farrar, J.A.

March 20, 2014.

Summary:

A complex series of multi-party actions arose out of the collapse of a publicly-traded technology company, Knowledge House Inc. (KHI). Wadden et al. (the plaintiffs) commenced a separate action against BMO Nesbitt Burns Inc. (BMO), claiming wrongdoing by BMO with respect to the KHI situation.

The Nova Scotia Supreme Court, in a decision reported (2013), 333 N.S.R.(2d) 60; 1055 A.P.R. 60, dismissed the plaintiffs' action. An order for judgment was issued on September 27, 2013. BMO sought an award of lump costs of $725,000 plus disbursements of $200,000.

The Nova Scotia Supreme Court, in a decision reported (2014), 341 N.S.R.(2d) 94; 1081 A.P.R. 94, awarded BMO legal fees of $725,000 and approved $140,000 for disbursements. An order issued on January 30, 2014. On March 20, 2014, the plaintiffs sought to extend the time for filing a notice of appeal. BMO objected.

The Nova Scotia Court of Appeal, per Farrar, J.A., extended the time to appeal until March 28, 2014.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The plaintiffs' action was dismissed (order dated September 27, 2013) and costs were awarded to the defendant (order dated January 30, 2014) - On March 20, 2014, the plaintiffs sought to extend the time to file a notice of appeal - The plaintiffs' counsel was instructed to appeal, but he did not file on time as he thought the time ran from the date of the costs order - The Nova Scotia Court of Appeal, per Farrar, J.A., granted the motion - It was only in those cases where the proposed grounds of appeal were clearly without merit that it would not be in the interests of justice to allow the extension - This was not one of those cases - The plaintiffs raised arguable issues on the appeal and they should have the opportunity to be heard.

Cases Noticed:

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 11].

McCully v. Rogers Estate (2013), 326 N.S.R.(2d) 5; 1033 A.P.R. 5; 2013 NSCA 22, refd to. [para. 17].

Counsel:

W. Harry Thurlow, for the applicants/appellants;

Linda Fuerst, for the respondent.

This motion was heard in Chambers, in Halifax, N.S., on March 20, 2014, before Farrar, J.A., of the Nova Scotia Court of Appeal, who granted the motion on the same date and issued the following reasons on May 7, 2014.