Boone v. Medusa Medical Technologies Inc.

Boone v. Medusa Medical Technologies Inc.

Medusa failed to meet its burden to prove conversion on a balance of probabilities; the applicants demonstrated that substantive rights would be eroded by delay, the issues are largely document driven with few important witnesses, the matter can be heard in months with predictable length and limited credibility assessment, and considerations of cost and delay favor maintaining an application; accordingly the motion to convert is dismissed.

Citation
2011 NSSC 492
Parties
Applicant/respondent: Peter Boone; Applicant/respondent: Loren Bough; Respondent/applicant: Medusa Medical Technologies Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
28 October 2011
Procedural Posture
Application to Enforce Debentures; Motion to Convert to Action / Motion to Convert Application to Action Under Nova Scotia Civil Procedure Rule 6
Outcome
Motion to convert application into an action dismissed
Legal Topics
Enforcement of Security, Conversion of Application to Action, Receivership, Oppression Remedy, Contractual Consent Clauses, Costs
Source Language
English
Corporate Law Contract Law Civil Procedure Securities Law Equity Enforcement of Security Conversion of Application to Action Receivership +3 more

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Parties

Peter Boone

Applicant/respondent

Loren Bough

Applicant/respondent

Medusa Medical Technologies Inc.

Respondent/applicant

Procedural Posture

Application to Enforce Debentures; Motion to Convert to Action / Motion to Convert Application to Action Under Nova Scotia Civil Procedure Rule 6

Legal Issues

  1. 1 Whether the application to enforce debentures should be converted to an action under Rule 6
  2. 2 Whether debentureholders are contractually barred from enforcement by clauses 2.2.2 and 3.1
  3. 3 Whether substantive rights of applicants would be eroded by delay if matter proceeds as an action

Ratio Decidendi

Medusa failed to meet its burden to prove conversion on a balance of probabilities; the applicants demonstrated that substantive rights would be eroded by delay, the issues are largely document driven with few important witnesses, the matter can be heard in months with predictable length and limited credibility assessment, and considerations of cost and delay favor maintaining an application; accordingly the motion to convert is dismissed.

Court Disposition

Motion to convert application into an action dismissed

Orders

  • Motion to convert dismissed
  • Boone and Bough awarded costs of the motion on a party and party basis