Unified Fisheries Conservation Alliance v. Independent Fisheries Limited

Unified Fisheries Conservation Alliance v. Independent Fisheries Limited Court Supreme Court Date 2026-01-07 Citation 2026 NSSC 3 Docket Hfx No. 538087 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Unified Fisheries Conservation Alliance v. Independent Fisheries Limited, 2026 NSSC 3 Date: 20260107 Docket: Hfx No. 538087 Registry: Halifax Between: Unified Fisheries Conservation Alliance, Michael Larkin and Bernie Berry Plaintiffs v. Independent Fisheries Limited, Xiaoming Mao, Jason Lamrock, Fisher Direct Ltd., Tyler Nickerson, Sea Well Holdings Limited and Wesley Nickerson Defendants Decision Judge: The Honourable Justice Peter P. Rosinski Heard: October 16, 2025, in Halifax, Nova Scotia Counsel: Richard Norman and Matthew Kuzak for the Plaintiffs Daniel Watt and Noah Entwistle for the Defendants Kristen Stallard on behalf of Michael P. Scott, Watching Brief for the Defendants not involved in this motion Jason Lamrock, Self-Represented (not involved in this motion) By the Court: Introduction [1] Ultimately this proceeding will address whether Independent Fisheries Limited and its principal, Xiaoming Mao, and others, received, handled and/or disposed of lobsters which had been illegally fished from the offshore of Nova Scotia. [2] In an amended Statement of Claim, filed December 18, 2024, the Plaintiffs (the “UFCA”) and Messrs. Larkin and Berry[1] claim that in Lobster Fishery Area (“LFA”) 34, the Defendants were involved inter alia, in “a conspiracy or conspiracies to transport, deliver, process and sell illegal lobster in Nova Scotia”[2] and in doing so did cause damage to the Plaintiffs (the Amended Statement of Claim, see paras. 9-13). [3] The Plaintiffs also specifically make claims pursuant to the following legal doctrines: intentional interference with economic interests; unjust enrichment; trespass; and alternatively, that the Defendants’ conduct “constitutes a novel tort as the Defendants’ conduct is unlawful and causing direct and damage to the Plaintiffs.” [4] I conclude that only the claim of intentional interference with economic relations should be characterized as similar to the claims of conspiracy, which generally require greater particulars, per Civil Procedure Rule (“CPR”) 38.03(8). [5] On January 6, 2025, the Defendants sent the Plaintiffs a Demand for [further and better] Particulars of the material facts that support these claims/causes of action, and of the identities of all UFCA members who have lobster fishing rights in the LFA 34 and have suffered relevant losses (Defendants’ Brief of September 20, 2025, at paras. 34-43). [6] On January 28, 2025, the Plaintiffs filed their 10 pages long Response to the Demand for Particulars. [7] The Defendants were not satisfied with the Response and filed a Notice of Motion on April 25, 2025: “for an Order requiring the Plaintiffs to provide further and better particulars of certain of the Plaintiffs’ claims, pursuant to Rule 38.08(6).” [8] The Plaintiffs say that the Defendants’ motion should be dismissed or deferred until after disclosure/discoveries are completed, whereas the Defendants say they need to know greater particulars, such as “dates and times” by month, who were the surveilled parties etc., in order to be in a position to properly prepare their Statement of Defence and address the case against them. [9] Any order of this Court obliging the Plaintiffs to formally further respond must arise pursuant to CPR 38.03(8), which reads: “A pleading must provide full particulars of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice.” [10] The persuasive burden is on the Defendants. [11] I conclude that the Defendants have not satisfied that burden, and I dismiss the motion. 1-The merits of the motion for full particulars per CPR 38.08(6) [12] CPR 38.08 (6) reads: “a judge may order a party to provide a further or better statement of a claim or defence.” [13] The draft Order provided sets out the relief the Defendants seek: The Plaintiffs shall within 10 days of the date of this Order provide complete responses to the following demands set out in the Demand for Particulars: 1(c); 4(a) - (d); 5(a) - (c); (e) - (j); 6(a); (c) - (f); (i); 7; 12 (a) (i)-(ii); (c); (e)- (f); 13 and 14. [14] The Defendants also acknowledged that the Plaintiffs are not in a position to respond to their Demands made in paragraphs 4(b), (c) and 5 (b) and (i).[3] [15] CPR 38.03(3) is relevant when a claim of civil conspiracy is made. [16] I rely upon Justice Norton’s reasons in DLF Law Practice Inc. v. McDonald, 2025 NSSC 71: Legal Principles [12] The Civil Procedure Rules regulate pleadings and their content. A statement of claim must provide notice to the defendant of all claims to be raised by the plaintiff: Rules 4.02(4) and 38.02(1). A statement of claim must be concise and do no more than all the defendant to know the case they must meet and not be surprised when the plaintiff seeks to prove a material fact: Rule 38.02(2). Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded: Rule 38.02(3). [13] An exception to the conciseness required in pleading arises where the allegation is of a form of behaviour that was calculated to “hurt” a plaintiff, a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice. In such a pleading, the party making the allegation must provide full particulars of a claim: Rule 38.03(3). [14] Justice Brothers provided a helpful summary of the principles of pleading in H&N Enterprises Inc. v. Novacation Inc., 2021 NSSC 191, at paras. 19, 24 and 46: [19] Distilled from the case law, the following principles are of assistance: 1. A pleading must sufficiently inform the defendant of the case she has to meet. 2. A pleading must contain a reasonable cause of action - that is setting forth the material facts for the constituent elements of the claim. 3. Pleadings must be concise but provide enough information for the opposing party to understand the claim that must be met. 4. Material facts are to be pleaded but not evidence in proof of those facts - the distinction between the two has been noted as difficult to ascertain at times: “it is often difficult to separate material facts from evidence” Fairbanks v. Nova Scotia (Attorney General), 2000 NSSC 103. 5. The Court must consider whether the opposing party is prejudiced by the pleading as it stands. 6. Pleadings should not contain opinion, argument, or irrelevant facts. 7. The drafter of a pleading will be given some latitude. [My bolding added] [17] The Defendants argue that the Plaintiffs have not given full particulars of their claim and therefore they must give greater Particulars to comply with CPR 38.03(3). [18] The Defendants state in their brief (para. 21): [4] The Moving Defendants seek an Order compelling the Plaintiffs to provide particulars on three fundamental issues: (i) the identities of the ‘commercial fisheries stakeholders’ and “members” on whose behalf the UFCA purports to claim; (ii) specific material facts relating to the Plaintiffs’ allegations of conspiracy; (iii) specific material facts relating to the Plaintiffs’ allegation of Mr. Mao’s personal liability for IFL’s [Independent Fisheries Ltd.] alleged conspiracy. [19] In response to Defendants’ Demand for Particulars per CPR 38.08 filed January 6, 2025,[5] the Plaintiffs provided their Answer per CPR 38.09 on or about January 28, 2025, in which they answered in some cases and did not answer in other cases, because they took the position that the Demands were not in relation to “material facts”, or they were simply unable to provide the requested Particulars. [20] I bear in mind the Plaintiffs are also arguing a “novel tort”, and that the underlying regulatory circumstances here are unusual, as reflected by the Plaintiffs’ pleading that non-parties, Canada and Nova Scotia, have “failed to take appropriate and/or effective action to prohibit and sanction the illegal fishing of lobster Nova Scotia and its sale.” [21] Moreover, as Mr. Norman aptly put it for the Plaintiffs, they are “total strangers to the illegal activity” at issue. [22] It would be unreasonable, and contrary to the spirit of our Civil Procedure Rules and jurisprudential tradition, to allow the Defendants to unreasonably “straitjacket” the Plaintiffs’ legal position/pleadings, by insisting that the Plaintiffs’ pleadings include purported material facts which are likely to be exclusively within the knowledge of the Defendants, their agents and proxies and others similarly situated. [23] In these highly unusual circumstances, I conclude that it is in the interests of justice that the motion be dismissed. [24] It is the Court’s view that that the parties should continue the proceeding by engaging further processes including the filing of a Notice of Defence, production/disclosure and the opportunity for discovery examinations. [25] I include for the benefit of the parties, Justice Norton’s reasons in Templeton Construction Ltd. v. Triumph Eastern Canada Ltd., 2025 NSSC 416 (which is a case managed file): Legal Framework for Disclosure [10] Before examining each of the outstanding requests individually, I make the following general observations. [11] There is no disagreement among the parties on the general legal principles related to disclosure as framed by the Civil Procedure Rules and the case law interpreting them. The presumption of full disclosure is a fundamental principle of our legal system. It ensures fairness in the administration of justice. The law is well established and need not be repeated. I refer to Civil Procedure Rules 14, 15 and 16 and to the following decisions: Baird v. Barkhouse, 2013 NSSC 425; Halifax Dartmouth Bridge Commission v. Walter Construction Corporation, 2009 NSSC 403; Henderson v. Quinn, 2020 NSSC 299; Saturley v. CIBC World Markets Inc., 2011 NSSC 4. [12] In addition, Rule 15.07 that authorizes a judge to give directions for disclosure of documents, and the directions prevail over Rule 15. Rule 15.07 is particularly relevant in complex litigation cases that are under case management. The case management judge has the obligation to direct the action toward its conclusions in accordance with objects of the Rules for a just, speedy and inexpensive determination of every proceeding. Analysis [13] The plaintiffs acknowledge that any party must answer questions at discovery that call for relevant non-privileged information, including those related to damages. However, they assert that plaintiffs do not have any obligation to inform themselves of every particular to their damage claim prior to discovery. I agree. However, they further argue that they are not obliged to provide this information through a discovery undertaking. I disagree. 2-An examination of the pleadings as they presently stand [26] The Amended Statement of Claim reads, in part, as follows: 1-The Plaintiff, UFCA, is an association of commercial fisheries stakeholders calling on the Government of Canada to establish clear, lasting responsible, regulatory oversight for all fisheries – commercial, food, social and ceremonial. … 5-In recent years, the Department of Fisheries and Oceans [DFO] the federal department of the Government of Canada which is responsible for regulating fisheries, has failed to take appropriate and/or effective action to prohibit and sanction the illegal fishing of lobster in Nova Scotia and its sale. 6-In recent years, the Province of Nova Scotia, which is responsible for regulating the buying, selling, and processing of lobster, has failed to take appropriate and/or effective action to prohibit and sanction the illegal buying, selling, and processing of illegal lobster in Nova Scotia. 7-During this time, illegal lobster fishing has increased. This activity has threatened and will continue to threaten the stock of lobster available to fishers who have licenses and who participate in the commercial fishery. 8-Due to the lack of investigatory and/or enforcement efforts on the part of DFO, UFCA has been obliged to conduct its own investigations with respect to individuals and companies involved in the illegal lobster fishery. 9-[UFCA] made arrangements to investigate and obtain evidence linking each of the Defendants to a conspiracy or conspiracies to transport, deliver, process, and sell illegal lobster in Nova Scotia. 10-The Defendants take delivery of lobster at the government wharf in Saulnierville Nova Scotia. The lobster obtained by the Defendants at the Saulnierville wharf is not caught by a license holder and therefore cannot be legally sold. 11-The illegal lobster is transported by various means to a fish plant owned by Independent Fisheries Limited [“Independent”] in Sable River, Nova Scotia. Independent knowingly takes delivery of the illegal lobster and subsequently profits from its sale. 12 – Without limiting the generality of the foregoing, the Plaintiffs state: (a)-In September and October 2024, Jason Lamrock knowingly picked up illegal lobster from the Saulnierville wharf using his white 5 tonne truck. (b)-… transported the illegal lobster either to his property or to Independent Fisheries Limited. (c)-When Jason Lamrock transported the illegal lobster to his own property he transferred the lobster into a white reefer truck. (d)-The white reefer truck was owned by Tyler Nickerson, Fishers Direct Ltd. and/or Sea Well Holdings Limited. The white reefer truck was driven by Tyler Nickerson’s brother, Wesley Nickerson. (e)-Wesley Nickerson knowingly delivered the illegal lobster to Independent Fisheries Limited. (f)-In either instance, once the illegal lobster was delivered to Independent Fisheries Limited, Independent Fisheries Limited knowingly took receipt of the illegal lobster. 13-To the extent that the personal defendants are directors or officers of the corporate defendants, the personal defendants are aware of the corporations’ illegal activity. They approve and profit from it. 14-The Defendants actions are contrary to the Fisheries Act and its associated Regulations. … 15-The lobster which is illegally caught for sale (i.e. out of season and without a license) is part of the common or public resource. The conservation of this common resource was once one of the paramount goals of the DFO. 16-The conservation of this common resource is a paramount goal of the commercial fishers of Nova Scotia as represented by the UFCA. By undermining the regulatory and conservation goals of the Fisheries Act and its Regulations, the Defendants’ actions and conspiracy constitute a public nuisance. 17-The Plaintiffs state that the Defendants acted in combination through unlawful conduct that was directed at causing damage to the Plaintiffs by circumventing the legal lobster market and did so cause damage to the Plaintiffs… 18-… Defendants’ unreasonable actions interfere with and harm the public’s interest in a well-regulated lobster fishery that protects the conservation goals of the Fisheries Act and uniquely impacts licensed fishers. 19-Jointly and severally, the Defendants’ actions intentionally interfere with the UFCA and its members economic interests. The Defendants intended to cause harm to the Plaintiffs’ economic interests by participating in the illegal lobster market and had that effect as a result of their illegal and unlawful actions. 20-The Defendants’ actions also constitute unjust enrichment. They have been enriched at the deprivation of the Plaintiffs for no juristic reason. Further, the Defendants knowingly assisted in the above outlined illegal scheme and were in knowing receipt of the illegal lobster. 21-The Defendants intentionally interfered with the lobster by knowingly participating in the illegal capture and sale of lobster thereby preventing licensed lobster fishers from obtaining the lobster, constituting trespass. 22-The Defendants’ actions have caused and will continue to cause an economic loss to the UFCA and its members and to anyone involved in the lobster fishery… 23-The individual Plaintiffs state that they have suffered direct financial harm as a result of the Defendants’ unlawful conduct; including but not limited to diminished catches of lobster due to the significant reduction of lobster resulting from illegal lobster fishing; 24-In the alternative, the Plaintiffs state… that the Defendants’ conduct constitutes a novel tort as the Defendants’ conduct is unlawful and causing direct and damage to the Plaintiffs 25-The UFCA seeks an Order: declaring that the Defendants’ actions constituted an illegal and/or civil conspiracy. [As well as interim interlocutory and/or permanent injunctions, and a declaration that the actions of the Defendants have caused damages in excess of $10 million to the UFCA and its members; general and special damages, and costs on a solicitor client basis]. [My bolding added] [27] The Plaintiffs, Messrs. Larkin and Berry are fishers who have lobster fishing licenses in LFA 34 off southwestern Nova Scotia. [28] They make the same claims as the other Plaintiffs, and also claim that they have: suffered direct financial harm as a result of the Defendant’s unlawful conduct, including but not limited to diminished catches of lobster due to the significant reduction of lobster resulting from illegal lobster fishing. 3-Why greater particulars have not been shown to be required in the circumstances [29] The Defendants’ January 6, 2025, Demand for Particulars is Exhibit “D” to Noah Entwistle’s affidavit filed April 25, 2025. The Defendants identify three fundamental “particulars” issues[6]: 1. the identities of the “commercial fisheries stakeholders” and “members” on whose behalf the UFCA purports to claim; 2. specific material facts relating to the Plaintiffs’ allegations of conspiracy; 3. specific material facts relating to the Plaintiffs’ allegation of Mr. Mao’s personal liability for IFL’s [Independent Fisheries Ltd.] alleged conspiracy. A-Membership of UFCA/UFCA [30] The UFCA is pleaded to be “an association of commercial fisheries stakeholders”. [31] In response to Demand for Particulars #1, the UFCA stated that it is not “an entity licensed by the [DFO] to fish lobster in waters off Nova Scotia” or “licensed by the Province of Nova Scotia to (i) buy and sell and/or (ii) process lobster in Nova Scotia”. [32] Not all members of the UFCA are directly financially impacted by the Defendants’ conduct as referenced in the pleaded allegations against the Defendants. [33] Moreover, the specific identities of the membership of the UFCA who may have been financially impacted by the Defendants’ unlawful actions may not precisely capable of identification at this time, because the scope and breadth of the Defendants’ unlawful activities are not known or cannot be known to the Plaintiffs at this time. Therefore, to that extent, their identities are not “material facts” necessary to be pleaded, or otherwise a basis for an Order for further and better/full particulars. [34] The nature of the two individual Plaintiffs’ relief sought arises because they have allegedly “suffered direct financial harm as a result of the Defendants’ unlawful conduct”. [35] The UFCA, seeks similar relief, but as noted by paragraphs 15 and 16 of the pleadings: The lobster which is illegally caught for sale (i.e. out of season and without a license) is part of a common or public resource. The conservation of this common resource was once one of the paramount goals of the [Department of Fisheries and Oceans]. The conservation of this common resource is a paramount goal of the commercial fishers of Nova Scotia as represented by the UFCA. By undermining the regulatory and conservation goals of the Fisheries Act and its Regulations, the Defendants’ actions and conspiracy constitute a public nuisance. [36] I decline to make an Order regarding the membership of the UFCA. B-Material facts relating to the Plaintiffs’ allegations of conspiracy [37] These demands include those in the Demand for Particulars at paragraphs 2, 3, 4, 5, 6, 7, 8 and 9. [38] Demand #2- “With respect to paragraph 7… (a) the time period to which the phrase “[d]uring this time” refers; (b) the factual basis upon which it is alleged that illegal lobster fishing has increased during such time period, including what persons entities and/or vessels are responsible for such increase… upon which it is alleged that such illegal lobster fishing has threatened and will continue to threaten the stock of lobsters available to fishers who have licenses… the location and boundaries [in question]… and, the persons entities and/or vessels alleged to comprise ‘fishers who have licenses and participate in the commercial fishery’, that is affected by the alleged illegal fishing.” [The Plaintiffs January 28, 2025, Answer to (a) is: “since at least 2020 to the present”; and to (b) is, in my words, that the remaining Answers could only authoritatively be given by DFO and Nova Scotia. They are not parties to the litigation. Otherwise, the Demand is effectively for evidence, and of information “already within the knowledge of the Defendant”. [39] Demand #3- Regarding the reference in paragraph 8 to the time period over which the “investigations with respect to individuals and companies involved in the ‘illegal lobster fishery’ occurred, and identities of the ‘individuals and companies’ alleged to have been involved in the ‘illegal lobster fishery’”. [Answer – “Formal investigations by the UFCA commenced in 2024.” Those alleged to be involved in the “illegal lobster fishery” do not constitute material facts or further constitute demands for evidence - I agree.] [40] Demand #4- Regarding the reference in paragraph 9, “full and complete particulars of the facts upon which it is alleged that the Defendants engaged in an alleged ‘conspiracy or conspiracies’ to transport, deliver, process, and sell illegal lobster in Nova Scotia, including, and without limiting the generality of the foregoing: a-the names of all the alleged conspirators… b-the dates on which the alleged conspirators conceived of the alleged conspiracy or each of the alleged conspiracies; c-the facts upon which it is alleged that the alleged conspirators acted in concert, by agreement, or with a common intention in respect of such alleged conspiracy or conspiracies; d-facts upon which it is alleged that the alleged conspirators conduct was directed towards the Plaintiffs; and e- the facts upon which it is alleged that: i-IFL is among the Defendants who engage in the alleged conspiracy or conspiracies; and ii-Mao is among the Defendants who engaged in the alleged conspiracy or conspiracies. [Answer “… The information sought does not constitute material facts… or any further information constitutes evidence… and/or otherwise is not the proper subject of a Demand for Particulars” - I agree.] [41] I note that, regarding the above noted item (e): the Plaintiffs have pleaded that: 4(b) Xiaoming Mao is an individual and is a Director of Independent Fisheries Limited as well as its President and Secretary… the directing mind of Independent Fisheries." [42] The Defendants, in large measure, are asking for particularized evidence, not material facts, which does not have to be pleaded. [43] Furthermore, one must not lose sight of the context. [44] The lobster fishery, writ large, is a highly regulated and complex environment. [45] Some of the subtext thereof was canvassed by Justice Keith in the Sipekne’katik First Nation decision, 2025 NSSC 354, where he stated: [1] In this claim, the Sipekne’katik First Nation challenged the legality of federal and provincial legislation that allegedly infringed their treaty rights to fish and sell lobster for a moderate livelihood. [2] The claim was grounded in treaty rights first memorialized by the Mi’kmaq Peace and Friendship Treaties of 1760-61. Section 35(1) of our Constitution Act, 1982, stamped those historic treaty rights with the imprimatur of constitutional importance. [3] In two landmark cases from 1999, Donald Marshall, Jr., was charged with fishing for eels in the coastal waters off Pomquet Harbour, in Antigonish County, Nova Scotia during a time when the applicable regulations deemed this fishery to be closed (i.e. during a closed season). [4] He was convicted at trial. The Nova Scotia Court of Appeal upheld his conviction. However, at the Supreme Court of Canada, he was acquitted. In recording this acquittal, the Supreme Court of Canada re-affirmed the Mi’kmaq constitutionally protected treaty rights and related treaty right to fish for a moderate livelihood. Those cases are R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456 (“Marshall 1”) and 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533 (“Marshall 2”). Justice Binnie (writing for the majority) said: “In my view, the treaty rights are limited to securing ‘necessaries’ (which I construe in the modern context, as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth” (at para. 7, Marshall 1). [5] At para. 59, he elaborated: The concept of “necessaries” is today equivalent to the concept of what Lambert J.A., in R. v. Vanderpeet (1993), 1993 CanLII 4519 (BC CA), 80 B.C.L.R. (2d) 75 (B.C. C.A.) at p. 126, described as a “moderate livelihood”. Bare subsistence has thankfully receded over the last couple of centuries as an appropriate standard of life for aboriginals and non-aboriginals alike. A moderate livelihood includes such basics as “food, clothing and housing, supplemented by a few amenities”, but not the accumulation of wealth (Gladstone, supra, at para. 165). It addresses day-to-day needs. This was the common intention in 1760. It is fair that it be given this interpretation today. [6] Important practical and legal questions remained at least partly (if not mainly) because certain key issues were not fully raised and argued before the Supreme Court of Canada in the Marshall cases. In particular, the Crown did not offer any evidence of justification for the prohibitions on eel fishing which formed the basis of the charges against Donald Marshall (para. 4 of Marshall 1 and para. 15 of Marshall 2). [7] This became a critical concern for the Supreme Court of Canada. As the Court confirmed in Marshall 2, aboriginal and treaty rights protected under s. 35 of the Constitution may be regulated but only if the Crown justifies it on broad public interest grounds such as conservation, for example. For present purposes, it is not necessary to delve deeply into the legal principles which drive a justification analysis except to say that the Court found this analysis was required but, again, not argued and therefore not decided in the Marshall cases. [8] In Marshall 2, the Court further explained the problem. It repeated that justification was “required but was not argued and therefore not decided” (at para. 21). It cautioned that regulation tools like “a closed season” could be valid only if justified for conservation purposes and must be assessed “on a species-by-species basis”, since “the complexities and techniques of fish and wildlife management vary” (paras. 21-22). However, the Court added that “catch limits that could reasonably be expected to produce a moderate livelihood... can be established by regulation” (para. 61). Ultimately the Court acknowledged the matter was not closed, stating that issues regarding other fisheries, such as lobster, could “be raised and decided in future cases” (para. 15). [9] The Supreme Court of Canada expressed hope that these matters were best resolved by negotiation (Marshall 2 at para. 22) but equally confirmed that the Court would “resolve the points of conflict as they arise case by case”. Thus, it repeated the caution that the acquittal of Mr. Marshall “is authority only for the matters adjudicated upon. The acquittal ought not to be set aside to allow the Coalition to address new issues that were neither raised by the parties nor determined by the Court in the September 17, 1999 majority judgment” (Marshall 2 at para. 23). [10] And so, the seeds of the current dispute were sown. Unfortunately, 26 years later, no clear resolution has been achieved. The issues that rose to surface in 1999 still exist and have generated considerable tension over the years. In this case, concerns flared when, in 2020, Sipekne'katik initiated its own independent lobster fishery as part of a “Rights Implementation and Lobster Fishery Management Plan”. [11] That is not to say that there has not been any progress. Both the Crown and the Plaintiff in this case acknowledge progress and, in fact, say that this litigation sparked productive negotiations which ignited a renewed desire to negotiate towards a more stable, mutual understanding as to how the fisheries might best be regulated, having regard to the recognized interests of all parties - including the constitutional treaty rights of the Mi'kmaq. [12] This action offered the possibility of moving towards greater clarity in the sense that the remaining unanswered questions following the Marshall decisions now assumed centre stage and demanded answers. This included the thorny issue of justification and the related questions such as: How do we define what is meant by the term “moderate livelihood”? And how might that concept be analysed or measured to ensure the treaty right is fully protected? [13] In this action, the Plaintiffs brought the matter to a head. They originally alleged that the Fisheries Act (Canada), Fishery (General) Regulations, Atlantic Fishery Regulations, Fisheries and Coastal Resources Act (Nova Scotia), and Fish Buyers' Licensing and Enforcement Regulations criminalized treaty-based fishing and trading activities. Sipekne’katik subsequently discontinued its claims involving the provincial (Nova Scotia) statutes and regulations. However, as against Canada, they continued to assert that the federal laws were unconstitutional, as they unjustifiably infringe treaty rights and fail the justification test established in R v. Badger, [1996] 1 S.C.R. 77 (“Badger”). The Plaintiffs sought declarations that the impugned provisions are of no force or effect insofar as they apply to Sipekne’katik’s treaty fishery, along with costs and further relief. [14] The Crown defended the action and the Unified Fisheries Conservation Alliance (“UFCA”) were granted Intervenor status. [15] At the risk of oversimplification and solely for the purposes of framing the issues which underpin this action, I distill the issues contained in the pleadings as follows: 1. As indicated, Sipekne’katik launched an independent lobster fishery in 2020 in St. Mary’s Bay, within Lobster Fishing Area 34, asserting that this was done pursuant to its treaty right to fish for a moderate livelihood. Sipekne’katik claimed its fishery is guaranteed as a constitutionally protected treaty right to fish and sell lobster for a moderate livelihood. Sipekne’katik alleges that the Fisheries Act and related regulations infringe this right by failing to accommodate it, exposing members to arrest and prosecution. It further argues that these infringements are unjustified under the framework set out in Badger; 2. Canada acknowledges the existence of a treaty right to fish for a moderate livelihood but disputes its scope and content. It argues that the Courts have not yet determined whether lobster falls within the treaty right or the geographic extent of traditional fishing grounds. Canada also contends that “moderate livelihood” remains undefined and, even if infringement is found, it is justified by the need for a single, federally regulated commercial fishery. Canada asserts it has adequately consulted and accommodated Sipekne’katik; and 3. UFCA, the Intervenor, agrees the treaty right exists and further acknowledges the constitutional protections. However, it argues that this treaty right, properly defined, is limited by species and geography. It denies any infringement and alternatively claims any infringement is justified by broader regulatory, conservation, and fairness considerations - which involve a sharing of the resource and some consideration of its interests. UFCA further alleges that any duty to consult has been adequately accommodated. [46] Canada and Nova Scotia are the recognized regulators of the industry. [47] Moreover, those involved in conspiracies have compelling reasons not to see any public light shed upon their activities. [48] Even in the criminal context, where the standard of proof and repercussions of convictions are much more grave, indictments alleging conspiracies between known and unknown persons are not uncommon. [49] It is apt here to cite the reasons of the eminent jurist Justice David Watt, for the Court in R. v. Root, 2008 ONCA 869 at paragraphs 57 - 72: [57] The indictment preferred against the respondent contained two counts of conspiracy, a single count of counselling an offence that was not committed, and two counts of the preliminary crime of attempt. My consideration of the grounds of appeal will follow the same order. 2. The Conspiracy Counts The Alleged Errors [58] The appellant says that the conspiracy counts alleged an agreement among the respondent, Radojcic, and unknown persons to possess and launder the proceeds of trafficking in cocaine. The prosecutor need only to have proven and did prove an unlawful agreement between the respondent and Radojcic or an unknown person or persons, not an agreement with both Radojcic and unknown persons in order to establish the respondent’s guilt. … [62] In connection with the unknown persons, Mr. Evans reminds that the trial judge found as a fact that the respondent did not disclose the origin of the funds to be laundered, nor did the unknown persons otherwise learn of the provenance of the funds. The trial judge also found that what occurred amounted only to negotiations, an attempt to reach an unlawful agreement, but a failure to do so. Despite a legal error by the trial judge in requiring proof of an agreement among all of the respondent, Radojcic and the unknown persons, the findings of fact doom the appellant's case on the conspiracy counts. The Governing Principles [63] It is helpful to recall some basic principles about the inchoate or preliminary crime of conspiracy in assessing the validity of the appellant’s claim of error. [64] The indictment contained two allegations of conspiracy. The participants in each conspiracy were the same: • The respondent • George Radojcic • Persons unknown The time period during which each conspiracy continued, and the places at which it was alleged to have operated, were the same. The counts described two different objects. One object was to possess unlawfully obtained property or its proceeds. The other object was to launder the proceeds of crime. The property and proceeds were one and the same. [65] It is elementary that the gist of the preliminary crime of conspiracy is the agreement. The actus reus of the offence is the fact of the agreement. Papalia v. R.; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at p. 276. In conspiracy cases, a distinction exists between an intention to agree, on the one hand, and an agreement, on the other. On its own, an intention to agree is not sufficient to establish the actus reus of conspiracy. R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at pp. 668-9. [66] For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt: i. an intention to agree; ii. completion of the agreement; and iii. a common (unlawful) design United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 86 at p. 511. Further, there must exist an intention to put the common (unlawful) design into effect. Dynar, at para. 86; O’Brien at p. 668. [67] In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. Papalia, at pp. 276-277; O’Brien at p. 668; Dynar at para. 87; R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301 at p. 316. Said somewhat differently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy - the agreement. Douglas at p. 40; David Omerod, ed., Smith and Hogan Criminal Law, 11th ed. (New York: Oxford University Press, 2005) at p. 374. [68] It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-6. Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed 1987 CanLII 5 (SCC), 1987 39 C.C.C. (3d) 576 (S.C.C.). [69] Where, as here, an indictment alleges that named persons conspired together and with other unknown persons, proof of participation of all named conspirators is not essential. R. v. Paterson (1985), 1985 CanLII 167 (ON CA), 44 C.R. (3d) 150 (Ont. C.A.) at pp. 156-7. Further, where the evidence establishes the conspiracy alleged between a named person and a person or persons unknown, the fact that the evidence fails to establish another named person’s complicity does not entitle the first named to an acquittal. Paterson at p. 156. [70] The fact that an agreement to commit a crime is conditional on the occurrence or non-occurrence of some event does not necessarily mean that there is no unlawful agreement. However, negotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do so something if it is possible or propitious to do so. R. v. Mills (1962), 47 Cr. App. R. 49, at pp. 54-55 (C.C.A.); R. v. Saik, [2007] 1 A.C. 18, at para. 5 (H.L.); Smith and Hogan, at pp. 363 and 371; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London: Steven & Sons, Ltd., 1983) at p. 351; and R. v. Walker, [1962] Crim. L. R. 458 (C.C.A.). Indeed every agreement about future conduct is hedged about with conditions, for example, to burgle premises if the owner is not home, or to steal something if anything of value can be found. But in each case, there is nonetheless an unlawful agreement despite conditions attached to its execution. [71] Conspiracy, like attempt, is a crime of intention. Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence, for example to possess or launder the proceeds of crime. The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of the conspiracy. The goal of the agreement, the commission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy. Dynar at para. 103. Where the goal of a conspiracy involves the commission of a substantive offence of which knowledge of certain circumstances is an essential element, the mental element is belief. The subjective state of mind of anyone who conspires with others to launder money is the belief that the money has illegitimate origins. Dynar at para. 108. [72] Among the preliminary or inchoate crimes, conspiracy, although requiring two or more genuine participants, is more "preliminary" than an attempt: Dynar at para. 87. Conspiracy is also a continuing offence. [50] In contrast to the criminal law, where an accused person has absolutely no obligation to assist with the investigation of the matter at hand, in civil matters, obligations to disclose rest on both the Plaintiff and Defendant - see our Nova Scotia Civil Procedure Rules Part 5 - Disclosure and Discovery - CPR 14, 15, 16, 17, 18, 19 and 20. See also my reasons in Roué v. Nova Scotia, 2013 NSSC 45 (affirmed by CJNS MacDonald, for the Court, 2013 NSCA 94): (d) No particulars should be ordered regarding the precise roles of each Respondent in relation to the restoration of the Bluenose II [107] As to the Respondents’ request for “particulars” of the alleged coordinated efforts of the Respondents, in their own Notice of Contest, the Respondents took the position at para. 21 that the Applicants' allegations were “bald and speculative” as to how each of the Respondents have “coordinated and conspired together to reproduce substantial parts of the Bluenose II” and “authorized any of the other Respondents.” Yet, at para. 17 of those same grounds, they stated: In response to paras. 30 and 31 of the Applicants’ Grounds [“The Respondents both individually and jointly have participated in destruction of the Bluenose II and the reconstruction of the vessel.”], the Respondents admit that the Province has undertaken a project to restore the Bluenose II and entered into contracts with the Respondents [Lunenburg Shipyard], [MHPM] and [Lengkeek] in relation to the restoration project. [108] Moreover, s. 3 of the Copyright Act defines “copyright” – “... in relation to a work, means the sole right [to do certain acts] ... and to authorize any such act.” [109] At this stage of the proceeding, the Applicants will necessarily have a limited ability to provide more detailed pleadings and/or particulars regarding this aspect since more information is not likely presently known or knowable to them. Since the Respondents do not deny that they all have had some involvement in the restoration of the Bluenose II, their complaint must more precisely be that they object to the claim that they did “reproduce substantial parts of the Bluenose II.” [110] An issue arose about whether the Applicants could, in law, rely on such reasons to avoid being required to provide further particulars concerning the roles of each Respondent in “the destruction of the Bluenose II and reconstruction of the vessel.” [111] The Respondents argued in essence that, if the Applicants were not aware of the precise material facts underlying the claim that “the Respondents both individually and jointly have participated in destruction of the Bluenose II and reconstruction of the vessel,” then they should not make or not be permitted to make the claim - paras. 22 - 24, Reply Brief. [112] The Applicants respond that they are unable to more precisely articulate the roles of each Respondent because that level of specificity is at present unknown to them, and unknowable as the information rests exclusively with the Respondents who have not willingly provided it to date - paras. 67 - 83, Brief. … [118] Resort to the underlying bases for the remedy of particulars, will cast the most light on the strength of the arguments for and against an order for particulars in the case at Bar. Legal Principles [12] The Civil Procedure Rules regulate pleadings and their content. A statement of claim must provide notice to the defendant of all claims to be raised by the plaintiff: Rules 4.02(4) and 38.02(1). A statement of claim must be concise and do no more than all the defendant to know the case they must meet and not be surprised when the plaintiff seeks to prove a material fact: Rule 38.02(2). Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded: Rule 38.02(3). [13] An exception to the conciseness required in pleading arises where the allegation is of a form of behaviour that was calculated to “hurt” a plaintiff, a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice. In such a pleading, the party making the allegation must provide full particulars of a claim: Rule 38.03(3). [14] Justice Brothers provided a helpful summary of the principles of pleading in H&N Enterprises Inc. v. Novacation Inc., 2021 NSSC 191, at paras. 19, 24 and 46: [19] Distilled from the case law, the following principles are of assistance: 1. A pleading must sufficiently inform the defendant of the case she has to meet. 2. A pleading must contain a reasonable cause of action - that is setting forth the material facts for the constituent elements of the claim. 3. Pleadings must be concise but provide enough information for the opposing party to understand the claim that must be met. 4. Material facts are to be pleaded but not evidence in proof of those facts - the distinction between the two has been noted as difficult to ascertain at times: “it is often difficult to separate material facts from evidence” Fairbanks v. Nova Scotia (Attorney General), 2000 NSSC 103. 5. The Court must consider whether the opposing party is prejudiced by the pleading as it stands. 6. Pleadings should not contain opinion, argument, or irrelevant facts. 7. The drafter of a pleading will be given some latitude. [My bolding added] [51] I am satisfied that disclosure / production and discoveries / interrogatories will likely further elucidate the facts in issue and ensure a more fulsome and efficient litigation process. [52] Thus, each of the parties will have more than one opportunity to understand the nature of the case and/or evidence of the other party. [53] It is not in the interests of justice to impose upon the Plaintiffs in these circumstances, an obligation to make answer for claimed material facts that are, for legitimate reasons, simply not within their present knowledge or otherwise not reasonably available to them, except through the unfolding of the litigation process herein. [54] I bear in mind that the Plaintiffs’ claims are not only relevant to the private interests of the parties, but also to an important public resource and interest of Nova Scotia and Canada. [55] To the extent that the Defendants are vindicated in their present position at the conclusion of the litigation, these issues may arise again when the matter of costs is addressed. [56] Demand #5- “With respect to paragraph 10, full and complete particulars of the alleged delivery of illegal lobster to the Defendants at government wharf in Saulnierville, Nova Scotia, including, without limiting the generality of the foregoing [a number of detailed factual matters, which can be summarized as dates and times, persons who were involved and locations - which I conclude however do not constitute material facts, but rather constitute evidence, and which information is likely readily within the knowledge of the Defendants who would be expected to create and maintain ongoing records in this respect.]” [57] Particulars in relation to these matters will not be ordered. [58] Demand #6- “With respect to paragraphs 11 and 12 full and complete particulars of how the alleged illegal lobster is transported to the fish plant owned by IFL in Sable River Nova Scotia… including, without limiting the generality of the foregoing: [a number of detailed factual matters which largely can be summarized as dates and times, persons who were involved and locations - the Plaintiffs make specific reference to Mr. Lamrock and his property and truck as well as Tyler Nickerson and Wesley Nickerson and Fisheries Direct Ltd. and/or Sea Well Holdings Limited.]” [The Plaintiffs’ Answer is that these Demands do not reference facts, but rather evidence - I agree.] [59] Particulars in relation to these matters will not be ordered. [60] Demand #7- “With respect to paragraph 13, full and complete particulars of the facts upon which it is alleged that (a) Mao is aware of my IFL’s or any other corporate Defendant’s allegedly illegal activity; (b) Mao approves of IFL’s or any other corporate Defendant’s allegedly illegal activity; (c) Mao profits from IFL’s or any other corporate Defendant’s allegedly illegal activity.” [The Plaintiffs’ Answer is that these Demands are for evidence not material facts, and it is noted that the Plaintiffs’ pleading specifically asserts that Mao is the directing mind of IFL- paras. 4 and 13 Claim. I agree] [61] Particulars in relation to these matters will not be ordered. [62] Demand #8- “With respect to paragraph 17, to the extent not previously addressed, full and complete particulars of the facts upon which it is alleged that the Defendant’s conduct was ‘directed at causing damage to the Plaintiffs.’” [The Plaintiffs’ Answer is that the Demand is for evidence, not material facts - I agree.] [63] Particulars in relation to these matters will not be ordered. [64] Demand #9- “With respect to paragraph 19, full and complete particulars of: [the names of all the members of, and the economic interests of each of them, and the UFCA alleged to have been interfered with]”. [The Plaintiffs’ Answer is that the Demand is for evidence not material facts - I agree. I note the UFCA does answer that it “was created in part to monitor illegal fishing activity because of the DFO’s failure to monitor and prosecute illegal fishing activity.… There is also a negative impact on the economic interests of the UFCA’s members in the LFA 34 as a result of the Defendants' illegal activity”.] [65] Particulars in relation to these matters will not be ordered. [66] Demand #10- “With respect to paragraph 20, to the extent not previously addressed, full and complete particulars of: [the unjust enrichment claim]”. [The Plaintiffs’ Answer is that “the Defendants have received payment as a result of their participation in the illegal lobster industry. As set out in paragraph 22 and 23 of the amended Statement of Defence [sic] illegal lobster fishing has negatively impact [sic] industry as a whole and directly financially impacted the individual Plaintiffs” and the Demand is for evidence not material facts.] [67] Particulars in relation to these matters will not be ordered. [68] Demand #11- “With respect to paragraph 21, to the extent not previously addressed, full and complete particulars of: [the intentional interference with economic relations claim]”. [The Plaintiffs’ Answer is that “the individual Plaintiffs as well as other members of the UFCA have exclusive, licensed fishing rights to the lobster illegal [sic] caught and processed by the Defendants” and that the Demand is for evidence not material facts - I agree.] [69] Particulars in relation to these matters will not be ordered. [70] Demand #12- “With respect to paragraph 22, full and complete particulars of the alleged economic loss suffered by the Plaintiff and each of its members as a result of the Defendant’s alleged actions, including without limiting the generality of the foregoing: [Factual matters regarding economic loss to the UFCA, its members or ‘anyone involved in the lobster industry’ and locations and boundaries of the referenced ‘lobster fishery’ and what ‘persons entities and or/vessels’ said to comprise ‘anyone involved in the lobster fishery’ and the ‘factual basis for calculation of the alleged losses are currently estimated to be in excess of $10 million… and growing’, and how those are caused by IFL and Mao.]” [The Plaintiffs’ Answer is that the Demand is for evidence not material facts - I agree.] [71] Particulars in relation to these matters will not be ordered. [72] Demand #13- “With respect to paragraph 23, full and complete particulars of the alleged ‘direct financial harm’ suffered by the individual Plaintiffs, including, without limiting the generality of the foregoing: (a) the factual basis on which it is alleged that the individual Plaintiffs have experienced ‘diminished catches of lobster’; (b) the factual basis on which it is alleged that there has been a ‘significant reduction of lobster’ resulting from the Defendant’s alleged unlawful conduct; and (c) the quantum of financial harm alleged to have been suffered.” [The Plaintiffs’ Answer is that the Demand is for evidence not material facts - I agree.] [73] Particulars in relation to these matters will not be ordered. [74] Demand #14- “With respect to the relief sought at paragraph 26, full and full and complete particulars of the special damages sought by the individual Plaintiffs.” [The Plaintiffs’ Answer is that the Demand is for evidence not material facts - I agree.] [75] Particulars in relation to these matters will not be ordered. Conclusion [76] The motion is dismissed. Costs [77] If the parties are unable to agree on costs, I direct that the Plaintiffs file their brief on costs (maximum 10 pages) within 7 days of receipt of this decision and that the Defendants file their brief (maximum 10 pages) within a further 7 days thereafter. Rosinski, J. [1] The Unified Fisheries Conservation Alliance “is an association of commercial fisheries stakeholders calling on the Government of Canada to establish clear, lasting, responsible, regulatory oversight for all fisheries - commercial, food, social, and ceremonial; the Plaintiff Michael Larkin is the president of the Brazil Rock 33/34 Lobster Association and a holder of a commercial license for the harvesting of lobster in Lobster Fishing Area 34; the Plaintiff Bernie Berry, is a senior advisor of the Coldwater Lobster Association and the holder of a commercial license for the harvesting of lobster in Lobster Fishing Area 34.” The UFCA was previously granted intervenor status as set out in the reasons of Justice John Keith in Sipekne’katik First Nation v. Canada (Attorney General), 2025 NSSC 354. [2] The illegal lobster trade also figured prominently in the context of statutory violations, in Rockville Carriers Limited v. Canada (Attorney General), 2023 NSSC 146. [3] Regrettably, these position changes were very lately communicated to the Court. [4] Also referred to by the Defendants in their brief as “four categories of material facts that must be pleaded” if a civil conspiracy claim is to be made out – paras. 44 - 62. [5] Initially dated November 21, 2024 - which all parties considered could be deferred until the Plaintiffs had amended their Statement of Claim as they did on December 18, 2024. [6] The Defendants have largely focused their Demand for Particulars through the lens of the allegation of civil conspiracy. The following other claimed bases for compensation: unjust enrichment; trespass, and “a novel tort as the Defendants’ conduct is unlawful and causing direct and damage to the Plaintiffs” are likely not of an “unconscionable conduct” nature as that wording appears in CPR 38.03(3). I leave aside providing an authoritative opinion whether the tort of intentional interference with economic relations falls within CPR 38.03(3), but it would seem to be the case- see Justice Norton’s words in DLF Law Practice Inc., 2025 NSSC 71 at para. 13.