Limbo Cove Resources Inc. v. Fraser, 2020 NSSC 134

SUPREME COURT OF Nova Scotia Citation: Limbo Cove Resources Inc. v. Fraser , 2020 NSSC 134 Date: 20200408 Docket: HFX457082 Registry: Halifax Between: Limbo Cove Resources Inc. and Matthew Moore Plaintiffs v. John David Fraser Defendant D E C I S I O N Judge: The Honourable Justice Glen G. McDougall Heard: February 25, 2020, in Halifax, Nova Scotia Counsel: Nathan Sutherland, for the Plaintiffs Eric Atkinson, for the Defendant By the Court: [ 1 ] The trial of Limbo Resources Inc. and Matthew Moore versus John David Fraser was set to begin on Tuesday, February 18, 2020.

A total of seven (7) days was set aside for this purpose. [ 2 ] The Date Assignment Conference (the “DAC”) that established these trial dates was held on Friday, March 15, 2019. [ 3 ] It was not until December 13, 2019, that the Court first learned that the defendant was seeking an adjournment to allow the Department of Fisheries and Oceans “to cause its Regional Review Committee… to proceed to the hearing of the status of Mr.

John Fraser… provided that the DFO undertakes to keep the recommendation of its Committee in abeyance pending the hearing of the matter before the Supreme Court of Nova Scotia.” (Reference to correspondence from Mr.

Eric Atkinson to the Prothonotary – Caroline McInnes – dated December 13, 2019.) [ 4 ] This correspondence also stated that as a result of Plaintiff’s counsel’s notice that he intended to contest the Defendant’s expert report “on account of the qualification of the expert himself and the admissibility of the Report pursuant to Rule 55.13 ” counsel for the defendant “concluded that it would be preferable to request an additional three days to hear the matter.” [ 5 ] Eventually, counsel for the Defendant, in correspondence dated December 17, 2019, sent to the Prothonotary – Tim Morse – withdrew his request for the adjournment after being advised by DFO that the defendant’s request to have the Regional Review Committee proceed with a hearing was refused.

Counsel did not indicate that his earlier request for additional trial time need not be further considered. [ 6 ] Just prior to this, counsel for the plaintiffs directed correspondence to the Prothonotary’s office dated December 16, 2019, indicating that his clients did not agree to an adjournment and suggested that “instead… the Court provide possible dates in close proximity to the currently scheduled hearing dates…” while adding “two additional days” to allow sufficient time to complete the trial.

[ 7 ] It was then that I became involved due to the fact that the original trial was assigned to me although double-booked with a 15- day civil jury trial which was scheduled to begin on the same day. [ 8 ] The jury trial had priority and it was up to scheduling to find another judge to preside over this matter. By correspondence, dated December 20, 2019, I advised counsel that they should raise their concerns regarding the additional time needed to conduct the trial with the Judge assigned to conduct the Trial Readiness Conference (the “TRC”).

The “TRC” was scheduled to be heard on Friday, January 3, 2020. [ 9 ] A copy of this correspondence was sent to my colleague, the Honourable Justice James L. Chipman, and to the Scheduler/Rota Manager at The Law Courts to alert them to the problem. There was virtually no chance that the trial could proceed on the dates initially set for this purpose because of the extra time needed. [ 10 ] Scheduling was able to find a sufficient block of time to conduct the trial which would have resulted in a rather brief two-month adjournment.

These new dates were acceptable to the plaintiffs but, unfortunately, not to the defendant. It was left to counsel for the plaintiffs to advance this Motion to order the defendant to set aside his objection and attend for trial on: • Monday, April 6, to Thursday, April 9; • Tuesday, April 14, to Thursday, April 16; and • Monday, April 20, to Wednesday, April 22, 2020. A total of ten (10) days. [ 11 ] The Motion was originally set down for a hearing before the Honourable Justice Richard C. Coughlan on February 12, 2020.

Before the hearing could be held, the longer 15-day civil jury trial that I was to preside over settled which then freed me up to deal with the Motion to force the defendant to proceed to trial in April. [ 12 ] I took the initiative to arrange a telephone conference call with counsel to let them know that I would deal with the Motion instead of my colleague, Justice Coughlan. [ 13 ] The hearing was re-scheduled to Tuesday, February 25, 2020.

In correspondence to counsel, dated January 30, 2020, I indicated that I would endeavour to find other possible dates to conduct the trial prior to April 6, 2020, or at some time after August 1 st of this year. [ 14 ] On Friday, February 21, 2020, I again corresponded with counsel to indicate that two other possible trial dates had been identified and were being held for counsels’ consideration. Those two new dates were, as follows: (

a) September 28, 29, 30, and October 1, 2, 5, 6, 7, 8, and 9, 2020 (a 10-day time period); and (

b) November 9, 10, 12, 16, 17, 18, 19, 23, 24, 25, 26, 30, and December 1, 2020 (an 11-day time period). [ 15 ] Counsel for the plaintiffs advised that his clients preferred to argue the Motion in an effort to have the Court order the defendants to proceed with the trial on the earlier dates in April. [ 16 ] The Motion proceeded as scheduled.

After hearing the oral submissions of counsel, the Court reserved decision until today. [ 17 ] After the hearing, I checked with Scheduling to inquire if the September/October dates would require the Court to sit Monday to Friday during the two weeks beginning on September 28 th in order to provide the required 10-days now estimated for trial.

Based on that conversation the days available for trial, should it be set down for hearing in September of this year, are: Monday, September 21 st and Tuesday, September 22 nd , and then adjourning to the following week on Monday, September 28 th , and continuing to Thursday, October 1 st , and picking up once again the next week, on Monday, October 5, and continuing until Thursday, October 8, 2020 – a total of ten (10) days spread over a three week period.

Plaintiffs’ Position [ 18 ] The position of the plaintiffs is that the trial should proceed of the earliest possible opportunity, which would mean it would get underway on April 6, 2020. Based on the estimate of time needed for trial – that being ten (10) days – the trial should conclude no later than April 22 nd . One can understand why the plaintiffs would want to have this matter resolved as soon as possible.

A great deal of time and effort has been expended since the plaintiffs’ Action against the Defendant was first commenced on October 28, 2016. [ 19 ] Counsel for the plaintiffs argued that the earlier dates in April accord with the purpose and object of the Rules of Civil Procedure which states: Rule 1.01 These Rules are for the just, speedy, and inexpensive determination of every proceeding. [ 20 ] The rules of procedure provide for an adjournment “… before the Finish Date, if all parties agree the party seeking the adjournment would suffer a greater prejudice in proceeding with the trial than other parties would suffer by losing the trial dates.” Adjournment of trial dates 4.20

(1) A judge may adjourn trial dates before the finish date, if all parties agree the party seeking the adjournment would suffer a greater prejudice in proceeding with the trial than other parties would suffer by losing the trial dates.

[ 21 ] Rule 4.20 also deals with motions for adjournment after the Finish Date. These latter provisions of the Rule are not engaged since the request for adjournment came before the Finish Date.

Furthermore, counsel for both parties were in agreement that an adjournment might be required in order to accommodate the need for an additional two to three days in order to complete the trial. [ 22 ] But, as indicated previously, the April dates were not acceptable to the defendant. [ 23 ] The affidavit of the defendant sets out the problems he would, or could, encounter if he was required to present himself for trial in April.

Most of the anticipated problems involved the work required to get ready to set lobster traps on the first day of the season currently scheduled to begin on May 7, 2020. [ 24 ] I do not propose to set out in detail the preparatory work required to get the traps, both lobster and crab traps, along with the boat needed to fish lobster ready for setting day or dumping day, as it is sometimes called. In fact, the defendant has not yet been able to source a boat that he will need to charter for that purpose.

He has, however, managed to secure a boat for crab fishing, which normally commences within days or, at most, a week of the end of the lobster fishing season in early July. [ 25 ] Suffice to say, the defendant is concerned that he will not be ready for the start of the lobster season should he be required to be in Court in Halifax for the better part of three weeks just before it is scheduled to begin. [ 26 ] His counsel argues that if the trial is postponed until September, his client’s ability to devote his full attention to getting ready for the start of the season would not be compromised.

Presumably this would allow the defendant to concentrate on maximizing lobster landings and revenue which, after the payment of expenses and wages to the defendant, as the vessel’s captain, and to his on-board helper, would be held in trust pending a final resolution of all matters in dispute. [ 27 ] The approach when fishing under the Snow Crab license is a little different. A quota is attached to each license and catches are limited to the amount allowed by DFO. It is still important to get an early start to the season in order to catch the allowable quota before stocks are significantly reduced or depleted.

Usually, the quota is caught within the first two weeks of the start of the season. In terms of revenue generated, the crab fishery is much more lucrative than the lobster fishery. [ 28 ] Counsel for the plaintiffs argues that even if the defendant is delayed in setting his lobster traps the historical revenue generated in the first few weeks of the season is comparatively lower than the 9-week average over the course of the entire season. He adds that a short delay at the start of the season should not be given any appreciable weight in deciding whether the Court should deny the Motion.

He submits that in keeping with Rule 1.01 the earlier dates should be utilized in order to achieve a “just, speedy, and inexpensive determination…” of the proceedings. [ 29 ] While there is considerable merit in this as well as the other arguments advanced by counsel in support of the Motion I see no reason to jeopardize the defendant’s ability to prepare for the upcoming season in an effort to maximize potential profits which will then be held in trust to be distributed as determined by the justice who hears the case. [ 30 ] Allowing the trial to proceed beginning on Monday, September 21, 2020, will not cause any significant prejudice to either party.

On the contrary, it should generate a larger monetary return from which to draw upon when the time comes. [ 31 ] It might take a bit longer to arrive at that point but a few more months delay, under the somewhat unique circumstances of this case which saw both counsel recognize the need for an adjournment of the February dates in order to obtain the extra time required to complete the trial, does not fly in the face of the stated objective of the Rules as set out in Rule 1.01. [ 32 ] In light of the affidavit evidence presented and after considering the very able arguments of counsel on both sides I believe the just thing to do is to deny the plaintiffs’ Motion and to order the trial be set down for hearing beginning Monday, September 21, 2020, and continuing until, on or before, Thursday, October 8, 2020 – a total of ten (10) sitting days spread over that three-week period. [ 33 ] I will now hear from counsel in respect to costs. [ 34 ] After hearing the oral submissions of counsel, costs of $850.00 are awarded to the defendant payable, in any event of the cause, once the matter has concluded.

McDougall, J.