Fana (DCD) Holdings Inc. v. Dartmouth Cove Developments Inc.

Fana (DCD) Holdings Inc. v. Dartmouth Cove Developments Inc.

The Court found the moving parties met their onus to convert because the presumption favoring an application was rebutted: it would be unreasonable to require early disclosure of witnesses given multiple non-party shareholders and unresolved witness identification, the dispute is factually complex with significant...

Source-derived case information.

Citation
2017 NSSC 157
Parties
Applicant/respondent: Fana (DCD) Holdings Inc.; Applicant/respondent: Robert Boutilier; Applicant/respondent: Albert Andrews; Applicant/respondent: Ross Cantwell; Applicant/respondent: Jason Jollimore; Respondent/applicant: Dartmouth Cove Developments Inc.; Respondent/applicant: The Anchorage at Dartmouth Cove Property Development Inc.; Respondent/applicant: Francis F. Fares
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
7 June 2017
Procedural Posture
Oppression and Corporate Shareholders Dispute Under Companies Act Brought by Application / Motion to Convert Application in Court to an Action (conversion Hearing)
Outcome
Application to convert granted; application converted to an action; procedural documents recharacterized; costs awarded.
Legal Topics
Oppression Remedy, Conversion of Proceeding From Application to Action, Witness Disclosure, Credibility Assessment, Proportionality and Access to Justice, Companies Act Third Schedule S.5
Source Language
english
Corporate Law Civil Procedure Evidence Oppression Remedy Conversion of Proceeding From Application to Action Witness Disclosure Credibility Assessment Proportionality and Access to Justice +1 more

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Parties

Fana (DCD) Holdings Inc.

Applicant/respondent

Robert Boutilier

Applicant/respondent

Albert Andrews

Applicant/respondent

Ross Cantwell

Applicant/respondent

Jason Jollimore

Applicant/respondent

Dartmouth Cove Developments Inc.

Respondent/applicant

The Anchorage at Dartmouth Cove Property Development Inc.

Respondent/applicant

Francis F. Fares

Respondent/applicant

Procedural Posture

Oppression and Corporate Shareholders Dispute Under Companies Act Brought by Application / Motion to Convert Application in Court to an Action (conversion Hearing)

Legal Issues

  1. 1 Whether the presumption in CPR 6.02 favoring applications is rebutted
  2. 2 Whether it is unreasonable to require early disclosure of witness information (CPR 6.02(4)(b))
  3. 3 Whether credibility and witness issues require viva voce evidence at trial rather than affidavit evidence at an application

Ratio Decidendi

The Court found the moving parties met their onus to convert because the presumption favoring an application was rebutted: it would be unreasonable to require early disclosure of witnesses given multiple non-party shareholders and unresolved witness identification, the dispute is factually complex with significant credibility issues not readily resolved on affidavits, the matter is unlikely to be ready in months and the relative cost and delay considerations and proportionality favoured proceeding by action; accordingly the application was converted to an action.

Court Disposition

Application to convert granted; application converted to an action; procedural documents recharacterized; costs awarded.

Orders

  • The application in court filed by the Applicants/Respondents is converted to an action.
  • The Notice of Application in Court shall constitute the Statement of Claim.